A Coherent Theory for the Copyright Protection of Computer Software and Recent Judicial Interpretations

The problem of software protection under copyright law cannot be meaningfully addressed by viewing copyright as a stand-alone statute. Rather, intellectual property law must be viewed as a coherent whole, with copyright, patent, trade secret, unfair competition, and trademark law each playing different but interrelated roles. Of particular importance for software protection are the relative roles of patent and copyright. Resolution of practically every important problem of software protection depends upon consideration of why computer programs which are technologically functional works were placed under copyright instead of patent law. Copyright should protect only those functional computer program elements that are vulnerable to misappropriation, and leave other program elements to patent and trade secret law. This article articulates a detailed view of the relationship between patent and copyright and the implications of this view for the copyright protection of computer programs. It finds the policy basis for protecting computer programs under copyright not in the artistic creativity that goes into program production, but rather in the necessity of protecting the digital works from piracy or misappropriation. The article concludes by considering judicial developments in the scope of copyright protection in programs, the copyright protection of interfaces, and reverse engineering of programs.