Computer Software: Intellectual Property Protection in the United States and Japan


Jack M. Haynes


VOL. XIII • Winter 1995 • NO. 2 (table of contents)

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Software, and not hardware, forms the interface between computer users and the machines those users operate, thus allowing the users to accomplish their tasks. These software programs, no less than hardware, are in need of intellectual property (IP) protection. The process of creating new programs occurs only through extensive software development, which is often costly and time consuming. Therefore, the need for software IP protection is apparent.

This comment helps readers to fully understand the ramifications of the presence or absence of software IP protection, by first examining the overall structure of a computer and the interplay between its various components, including its hardware and software. It then offers an analysis of the software development process, including both current trends and likely future developments, such as multi-platform applications. These factors are both critical to building the essential foundation for understanding the importance in solidifying software IP protection.

After explaining the structure and components of the computer, it then examines the various forms of potential IP protection, including copyrights, patents, trade secrets, trademarks and licenses, and determines which, if any, is most suited to the task of protecting software IP rights.

Given this background, an analysis of United States law -- both from the perspective of the historical development and current state of software protection in the country -- illustrates the need for improvement despite the significant progress made in protecting software producers. Several recommendations for improvement have been made, including the passage of a sui generis statute that better addresses the problem of distinguishing the idea from the expression in software and limiting copyright protection to the elements of structure, sequence and organization, which are not related to the enhancement of computer efficiency.

When analyzing the sufficiency of Japan's IP protection of computer software, the country's past and present system of software IP protection and Japan's legal standard must be understood. Although Japan's system of IP protection is, on the whole, similar to that of the United States, certain social and cultural differences between the two countries mean that in Japan, for example, certain challenges to the protection of software IP rights may arise for a given software producer that are substantially different from those arising under traditional United States law. Given this reality, recommendations for improvement in Japan's software IP protection system should also consider the computer industry's adoption of open systems and automated software development tools, in addition to the application of a sui generis approach to software protection undertaken pursuant to a revision of Japanese Copyright Law.

For both countries, however, the analysis of software IP protection sufficiency is incomplete without an analysis of the various international agreements that may have an effect on software protection in both nations. These multi-national agreements include the various provisions of the Berne Convention and the Universal Copyright Convention. From an analysis of these agreements, improvements can be made in the protections afforded in the international sphere. Recommendations for such improvements include adopting a sui generis computer software protection law in the General Agreement on Tariffs and Trade, embracing the World International Property Organization's proposal to eliminate national treatment and grant explicit rights to software producers and amending the various existing national patent laws to more adequately cover software.

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