As the technological innovation has incredibly increased in the last few years, the number of computer programs is currently immense. The subject matter of the debate concerns the appropriate protection for computer programs. Such programs can be subject to copyright or patent, or even both. The main source of this debate is caused by the characteristics of a computer program, which is incredibly complex. This article will consider whether copyright is an appropriate protection for computer programs.

SECTION I: CHARACTERISTICS OF COMPUTER PROGRAMS

A computer program can be defined as “ a set of instructions capable, when incorporated in a machine readable medium of causing a machine having information processing capabilities to indicate, perform or achieve a particular function, task or result”[1]. In order to appreciate the appropriate protection for computer programs, it is useful to provide an overview of the main characteristics representing them.

Firstly, software has a hybrid nature in the sense that it is composed by both text (source code) and behaviour. The source code cannot be seen by a computer program’s customers and is converted by the process of compiling. In addition, software’s text and software behaviour are fundamentally independent from each other. “Two programs with different texts can have completely equivalent behaviour. A second comer can develop a program having identical behaviour, but completely different text”[2]. Therefore, it has to be noted that the behaviour aspect is the main source of value in a computer program. Consequently, the market considers programs with same behaviour as substitutes, regardless of whether they have the same text or not.

Secondly, computer programs act like machines. They behave for utilitarian results and they can be used with other programs to reach any determined goal. Computer programs are the outcome of an assembling process[3]. Indeed, they are made by compilations of several components, which allows that smaller programs contribute largely to the creation of larger programs.

Finally, programs contribute to a cumulative and incremental innovation. Indeed, programs are generally made by both old and new elements. Programmers mainly use old elements in order to adapt them in another proficient way or in order to reach another specific result.

 

SECTION II: COPYRIGHT PROTECTION FOR COMPUTER PROGRAMS

Mainly, the fact that few criteria are required for copyright protection is also one of its advantages. Indeed, a computer program may be protected by copyright if it is original. Therefore, without any other requirement, copyright has the great advantage to be automatic, effective and not expensive. Then, copyright protection is adequate for both large and small companies.

However, the fact that copyright protects simply the literal aspect in computer programs is its biggest weakness. As a consequence, copyrights offer a protection too narrow and inefficient. As a matter of fact, everybody has the possibility to imitate the idea or the notion itself. By protecting the expression of the idea, copyright does not take in consideration the most essential characteristic in computer programs. Moreover, contrary to patents, copyrights do not protect against independent creators. In addition, opponents also argue that the copyright protection period is excessive considering the short life of software product and 20-year maximum period of patent protection. Besides, the automaticity of copyrights is an advantage regarding to the costs, but also an inconvenient regarding to a possible emergence of dispute. Indeed, the creator of the program will be certain of its intellectual right only after the emergence of a dispute. Further, the absence of publicity is a problem in case of showing an evidence of its anterior right opposed to competitors.

 

CONCLUSION

Finally, it is of the present writer’s opinion that patent offers a better protection for software than copyright. Indeed, what is the point of having a protection, which does not protect the most essential characteristic of computer programs, which is the behavioural aspect?

 

 

[1] WIPO, Model provisions on the protection of computer software, Geneva 1978.

[2] D. Koo, ‘Patent and copyright protection of computer programs’, (2002) 2 I.P.Q., 189

[3] D. Attridge, ‘Copyright  protection for  computer  programs’, (2000) 22(12) E.I.P.R., 568