The Gordian Algorithm: An Attempt to Untangle the International Dilemma over the Protection of Computer Software

In the past ten years, a great deal has been written about legal protection for computer programs. Even with all of the debate and the clear need for a uniform approach, the international community is not much closer to an agreement today than it was ten years ago. Much of the debate centers around whether computer programs are covered by existing schemes of intellectual property protection. (1) Of these traditional modes of protection, copyright and patent law have received the most attention. However, no general agreement exists as to which of these traditional schemes is best suited to the protection of software. A number of countries have adopted copyright laws specifically dealing with computer programs. (2) Many of these same countries also provided limited patent protection for computer-related inventions. (3) Proposals have been made to clarify the law as it relates to computer programs and provide a comprehensive plan for their protection. Two such suggested plans, the World Intellectual Property Organization (WIPO) (4) and Association of Data Processing Services Organization (ADAPSO) (5) proposals, focus on copyright law and attempt to include programs within a copyright-based scheme of protection. (6) Another approach included computer programs within the coverage of the patent laws. (7) This Note proposes a new approach to the protection of computer programs which is based upon patent law and can be implemented through amendment of existing national patent statutes. (8) Initially, this Note will examine the methods of protecting computer programs currently used in the United States, Canada, Japan, and the European Economic Community (EEC) and asses the goals and concerns which these laws attempt to address. Next, the Note recommends a set of amendments to the U.S. patent laws, which may also serve as a guide for amendments to other countries' national laws, or as a basis for an international treaty in the are of computer software protection. Finally, this Note articulates how the proposed amendments may provide a solution to the problems caused by computer software's unique characteristics. NATIONAL TREATMENT The following is a brief outline of the U.S., Canadian, Japanese and EEC laws relating to the protection of computer software. (9) The focus will be on statutory and case law relating to computer programs. The United States In thee past, U.S. law attempted to protect computer programs through both copyright and patent laws. The predominant holds that copyright is the only viable method of protection. (10) Recently, however, a new trend has surfaced toward seeking patent protection. (11) In the United States, there is no clear consensus as to the proper means of protecting software. Copyright U.S. law currently favors copyright as the means of protecting computer programs. (12) Originally, computer programs were regarded as functional, not expressive, and, therefore, outside the scope of copyright protection. (13) Although disagreement existed regarding whether copyright should apply to computer software, it was clear that some action on the part of the U.S. Congress was necessary to clarify the situation. Faced with external pressures and guided by recommendations from the National Commission on New Technological Uses of Copyright Works (CONTU), the U.S. Congress amended the copyright laws to explicitly include computer programs. (14) Since the Copyright Act of 1980, (15) the law has favored copyright for the protection of software. A series of cases have expanded the scope of the copyright protection. In Apple Computer, Inc. v. Franklin Computer Corp., (16) the Third Circuit held copyright protection applied not only to the program's original source code, but to the computer object code as well. (17) Apple Computer, Inc. v. Formula International Inc. (18) further extended protection by holding that a computer program stored in a Read Only Memory (ROM) chip was protected by the copyright on the program's source code. …