DESCANSO 5 MIN Actividad práctica
3.7. INNOVACIÓN DOCENTE
Utilitarian theories are advanced at the first level of the debate - that is in support of affording copyright protection to computer programs. It is asserted that computer programs ought to be protected by copyright like any other protectable work to reward their creators and serve as an incentive to further creativity in the software industry. This immediately raises two questions.
First, is copyright an appropriate reward for software programmers? Some scholars argue that it is an appropriate reward because it meets their needs.102 In particular, the fact that protection arises automatically
and without cost is lauded as being of great benefit to programmers. This is because it frees them to focus on their work without requiring costly and often delayed procedures to secure protection. However, this may also be construed as a disadvantage as it may foist a programmer with protection that he does not want. In such cases, the programmer has to find some means of opting-out of this protection. Before the development and free distribution of licenses by GNU and other similar
102 Jane C Ginsburg ‗Four reasons and a paradox: the manifest superiority of
copyright over sui generis protection of computer software‘ (1994) 94 Columbia Law Review 2559 at 2562 (hereafter Ginsburg ‗manifest superiority of
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organisations,103 programmers had to draft the licenses themselves or
hire attorneys to do so at significant expense.
Other scholars argue that copyright protection is inappropriate because it is incompatible with contemporary programming methods104 (see section
4.3.2 (a) below) and is ill-suited to the functional nature of computer programs (see section 4.3.2 (b) below).
Secondly, does copyright protection of code promote innovation in the software industry? Those in support of copyright protection argue that copyright protection of code has not harmed the software industry, which is thriving.105 On the other hand, those opposed to copyright protection
aver that it stifles innovation because of its incompatibility with contemporary programming practices.
Further, it is contended that computer programs should be protected by copyright because this contributes to the public good in two key ways. First, through the provision of useful methods that can be utilised profitably for the benefit of users and the public in general. Secondly, where the protected expression is published, this contributes to the public
103 These licenses are discussed below at section 6.2.3 (a). 104 Lipton 228.
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good through making information pertaining to these methods available which would spur further innovation.
However, similar to the position with regard to software patents, the value of such disclosures is disputed. The problem in the copyright context is that computer programs are distributed not as source code but as object code (i.e. binary form) which is not readily comprehensible to humans thereby excluding any meaningful disclosure. It is possible to convert the object code to source code through decompilation, but it is unlikely that an ordinary user with no computer programming expertise could decompile object code. Therefore users have no meaningful access to both the protected expression and related ideas or functionalities which may be distilled from this expression. This defeats the instrumental rationale for copyright.106
(b) International obligations
It is clear that copyright protection must be provided for both source and object code because it is required by TRIPS art 10(2)107 which provides:
‗Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).‘
106 Dogan and Liu 214.
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This seems to dispense with the first level of the debate as TRIPS member states are obliged to afford copyright protection to computer programs. However, member states have some policy space created by TRIPS art 9(2) which limits such protection to expression and not ideas. Using several policy levers, 108 TRIPS member states‘ courts have
developed various approaches to distinguishing expression from ideas (as discussed above at section 4.1.1 (c) and below at section 4.3) and to equitably balance creators‘ and users‘ interests. The public interest concerns underlying these approaches are discussed in the following section which makes a case for the limitation of copyright protection for source code.
4.4.2 Arguments against copyright protection of source code
There are various arguments against copyright protection of computer programs at both levels of the debate. These arguments support the denial of copyright protection to computer programs in the first place and can also be used to support the provision of thin or limited copyright protection.
108 Dogan and Liu 209 list the following policy levers: ‗lower-level functionality,
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(a) Incompatibility with programming practices and the software industry
When it comes to writing code the focus is on source code because it is written first and thereafter compiled or converted into object code. A programmer‘s skill, labour and knowledge go into writing source code and compilation is considered to be an automated menial task.
Copyright protection is inappropriate because writing source code is a sequential process with each developer incorporating substantial portions of code written by others into his own code. This is because contemporary programming methods are based on modularisation and re-use of these modules to ensure efficiency and inter-operability.109 These units or
modules of code are intentionally written so that it is possible to use them in many different contexts with no modifications or minor modifications to ensure that different computer programs can work together. Asserting copyright in source code makes it more difficult, time-consuming and expensive for creators or programmers to write new programs. This is because they have to independently create or re-write substantial amounts of source code or pay licence fees to access and use existing
109 Lipton 228.
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code.110 Where new code has to be written this is inefficient, may hinder
inter-operability and ease of use to the detriment of users. Hence, some developers choose not to enforce their copyright against others and instead use creative commons or similar licenses to enable others to use their code.
To avoid having to depend on the goodwill of programmers, it is more equitable to limit (by statute or through case law) copyright holder‘s rights by providing exceptions to promote efficiency in programming practices, to enable inter-operability and ease of use. In some jurisdictions courts have rightly laid much store on inter-operability.111
Fuller details of such legislative proposals are presented in Chapter Six (at section 6.2.1 (a) (iv)).
110 In arguments relating to patents this phenomenon is known as ‗patent thickets‘,
see for example James E Bessen ‗Patent thickets: strategic patenting of complex technologies‘ (Working paper, 2003) 2 Available at
< http://www.researchoninnovation.org/thicket.pdf > (last accessed 18 March 2011), James F McDonough III ‗The myth of the patent troll: an alternative view of the function of patent dealers in an idea economy‘ (2006) 56 Emory Law Journal 189 at 203 – 204.
111 For example, Lotus Dev. Corp v Borland International Inc 49 F 3d 807 (1st Cir
1995) at 817- 818: ‗That the Lotus menu command hierachy is a ―method of operation‖ becomes clear when one considers program compatibilty. Under Lotus‘s theory, if a user uses several different programs, he or she must learn to perform the same operation in a different way for each program used. For example, if the user wanted the computer to print material, then the user would have to learn not just one method of operating the computer such that it prints, but many different methods. We find this absurd‘ (My emphasis).
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As noted at section 3.3.2 (c) above, due to its short shelf life and a rapidly changing innovative landscape, computer programs do not require lengthy protection. Therefore, the lengthy duration of copyright is inappropriate for computer programs.112 Hence calls for shorter term sui
generis protection of computer programs (see section 6.2.1 (a) below). (b) Incompatibility with the inherently functional nature of computer programs
Copyright protects the expression of both object and source code. Although courts have devised multiple means to separate ideas or functionalities from expression, these means are not always successful. This is to the detriment of both creators and users of e-commerce business methods.
Copyright protection of computer programs is not a suitable and meaningful reward for creators because copyright is ill-suited to protecting functional works. Generally speaking, protection of functional works is better left to patent law,113 because patent protection permits
‗objectively measurable‘ ‗incremental improvement of functional works‘.114
On the other hand, copyright protection is static and does not cater for
112 Ballardini 9.
113 See Dennis S Karjala ‗Distinguishing patent and copyright subject matter‘2003
Connecticut Law Review 440 (hereafter Karjala ‗Distinguishing‘).
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such improvement as it deals with different subject matter.115 To reward
a creator with protection that is incapable of protecting his or her further development of that work is inappropriate. However, as already stated in Chapter Three, patent protection is inappropriate for computer programs generally and e-commerce business methods in particular. Protecting the functionality of e-commerce business methods creates difficulties for users because it stifles innovation leading to fewer, and possibly more expensive, methods on the market.
4.5 Impact of the copyright protection of e-commerce business methods on