Scope of IP Protection for the Functional Elements of Software

IN SEARCH OF NEW IP REGIMES, pp. 27-62 IPR University Center, 2010

45 Pages Posted: 7 May 2010 Last revised: 14 May 2014

See all articles by Rosa Maria Ballardini

Rosa Maria Ballardini

University of Helsinki - IPR University Center

Date Written: April 1, 2010

Abstract

It is well-known that the pluralistic nature of computer programme code has made it challenging to keep up the distinction between copyrightable and patentable aspects of software. The dual nature of software, as both literal and performing (practical) functions at the same time, has been particularly problematic for intellectual property laws.

This article argues that both European copyright and patent laws urgently need some refinement in order for them to interact with each other in a way that would promote rather than impede innovation in such a fundamental field of technology as computer software. The more pressing questions concern the scope to be accorded to copyright and patents, particularly with respect to the protection of software’s most valuable assets, namely its functional elements. It is evident that when it comes to functional aspects, patents are a much better protection mechanism than copyright. However, in order to maintain the distinction between copyrightable and patentable objects in software two rules should be considered.

Firstly, on the copyright front, this article advocates the adoption of explicit statutory limitations against non-literal infringement to keep the scope of software copyright protection within the sphere of literary works of art.

Secondly, the paper suggests that keeping software within the umbrella of patent law is essential in order to impede copyright from expanding to protect the functional elements of software in a ‘patent-like’ manner.

Keywords: Software IP Protection, Copyright, Patents, Overlap

Suggested Citation

Ballardini, Rosa Maria, Scope of IP Protection for the Functional Elements of Software (April 1, 2010). IN SEARCH OF NEW IP REGIMES, pp. 27-62 IPR University Center, 2010. Available at SSRN: https://ssrn.com/abstract=1599607

Rosa Maria Ballardini (Contact Author)

University of Helsinki - IPR University Center ( email )

P.O. Box 4 (Yliopistonkatu 3, 4th floor)
University of Helsinki
Helsinki, 00014
Finland

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