Copyright Protection of Computer Software in the United States and Japan

The first part of this article established and reviewed the policy basis for the radical departure from traditional intellectual property norms effected by the application of copyright law to the protection of technology in the form of computer programs. Computer programs are vulnerable to direct, blind, fast, and almost costless electronic copying. Because copyright protects against copying, it seems a natural legal response to this type of technological piracy, notwithstanding copyright’s traditional reluctance to protect functional works. If the scope of copyright protection in programs is limited to literal code and mechanical or electronic translations, this protection of technology through copyright would appear to raise few problems. Courts in the United states, however, have largely failed to recognize the unique nature of programs as objects of copyright protection and through inappropriate analogy to novels and plays have expanded the scope of copyright protection in programs to so-called 'structure, sequence, and organization' or 'SSO' and to functional elements of the user interface. This second part of the article now applies the analytical structure set out in the first part of the article to software protection in Japan. It shows the Japanese drawing a more appropriate balance between protecting against piracy and promoting the free flow of technological ideas.