Ever since the computer software industry began during the mid-1970’s with the personal computer revolution, using intellectual property rights (IPR) to protect software has been controversial. Presently, software can be protected using both copyright and patents. The issue of software patentability is particularly contentious. On one side there are the large, mainly U.S. based corporations, such as IBM, Microsoft and Apple, who dominate the software market and have traditionally been are advocates for strong intellectual property protection for software. On the other side there is the open-source/free software movement who believe software should not be patented and that the source code should be freely available for use, improvement and adaptation by users. The free software movement argue that software should not be patentable for a variety of technical and moral reasons. There are considerable problems with the granting of patents, mostly in the U.S., for software innovations that are not novel and non-obvious. Software development is mostly a process of incremental steps, and there is a also a problem with a lack of expert patent examiners and a large enough body of prior art by which to judge the validity of patent applications for software innovations. Morally, many believe that software patents stifle creativity and unfairly advantage large business over smaller/single producers and developing countries. There is also an argument that large business use software patents strategically and the result is protection of business methods rather than a software innovation per se.
Copyright is a cheap, almost universal and automatic intellectual property right without the need for registration (1). Copyright laws are aimed at protecting creative works and protect the manner of expression of an idea not the underlying idea itself (1). This means that a program created that results in the same behaviour/function as an already existing program does not infringe copyright.In Australia, copyright has protected software since 1984 after widespread industry concern following a 1983 court decision (Apple Computer Inc v Computer Edge Pty Ltd) that software was not protected by copyright led to amendment of the Copyright Act giving software copyright protection as literary works (2). In the U.S. copyright provision for computer programs was added by amendment in 1980 (2). Copyright protection in the U.S. was strengthened when the court found, in Apple Computer Inc. v. Franklin Computer Corp., that copyright protected software code from a subsequent developer even for the purposes of compatibility. Later, the U.S. Supreme Court weakened this strong protection arguing that subsequent developers must be allowed to emulate and build on the innovators code (3). Due to the generally weak level of protection offered by copyright on software function, many software producers have moved to use copyright to protect their software by obtaining and enforcing copyright protection on the “look and feel” of their graphical user interfaces (GUI’s). Restricted access to well-known GUI structures and commands makes it very difficult for new companies to compete with established products because users are unwilling to learn new layouts and command structures (4). Expressive elements that have been the subject of prosecutions include; placing screen captions at the top centre of the screen, using the colour blue as the screen background, labelling the opening menu of a program as ‘Opening Menu’ (4) and on programming languages, for example Adobe claim that their PostScript language is protected by copyright (5).
Patents offer much stronger potential protection for software than copyright and are therefore attractive to companies seeking to protect their computer program from copycats. Patents also protect against potential reverse engineering...