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Journal of Intellectual Property Law & Practice Advance Access published online on January 14, 2008
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpm228
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© The Author (2007). Published by Oxford University Press. All rights reserved

Would the current ambiguities within the legal protection of software be solved by the creation of a sui generis property right for computer programs?

Laurence Diver *

Legal context: Software is an anomaly in the traditional sphere of IP, and its problematic nature has been manifest in the confused findings of courts on both sides of the Atlantic. This article considers the reasons for the confusion, where things might have been done better, and how the law could develop considering the realities of the industry.

Key points: Software protection at present favours the multinational corporations, while the interests of smaller companies and the Free and Open Source Software community are prejudiced greatly. The current regime is not fundamentally incompatible with software, however, and as such features of it could and should be retained in the creation of a sui generis IP right.

Practical significance: Much of today's software industry is driven by the efforts of small enterprises and the Free and Open Source Software community. Their interests are not recognized in the current protection-biased framework, and as a result innovation is being stifled by the threat of litigation. IP law in this area is preventing the very thing it is designed to foster—enterprise and innovation.

Key Words: A perpetually controversial topic both within IP circles and within industry is the extent to which, at all, computer programs should be entitled to legal protection; this debate has engaged both the patent and copyright professions, among others. • The lack of certainty, clarity, and any shared perception of fairness regarding the current position, on both sides of the Atlantic, has resulted in prejudice to the interests of all sides of the software debate: originators, their competitors, and consumers. • This article proposes taking a fresh look at software protection, proposing a hybrid, sui generic approach that borrows from existing legal and commercial concepts but without being restricted by the framework in which they currently operate.

* LL.B. (Hons), University of Edinburgh.


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