Intellectual property rights on software: how much protection is sufficient?

Over the past fifty years, the software sector has grown to unprecedented proportions. The innovation of software developers and tech companies has propelled our society into the digital age, in which software has become indispensable in our daily lives. And the companies that develop these software applications are rewarded for their efforts, largely because their innovations are protected by intellectual property rights.

The key debate of the past decade is how much legal protection software should receive in order to continue stimulating innovation. Too little, and developers become frustrated because their hard work and creativity are copied by a competitor all too easily. Too much, and competition suffers, causing the market to stagnate. It is a difficult balance to strike, with constant pressure from both sides.

The undersigned wrote a thesis on this subject last summer as part of his advanced Master’s programme in Intellectual Property Rights and ICT Law. In the blog below, he briefly discusses which possible intellectual property rights can be invoked for the protection of software.

What protection can software rely on?

Intellectual property rights lie at the heart of what makes the software industry so successful. Software and computer programs can be protected under various intellectual property rights, depending on the nature of the software to be protected. In practice, the question of whether a software program can be protected (as a whole or only in part), and if so, which intellectual property right is most suitable for that purpose, is not so easy to answer. As software becomes increasingly complex, the legal questions surrounding its protection also continue to evolve. 

Legal definition of software

To understand these questions that have arisen regarding the protection of innovative software, a basic understanding of the various components and elements is required. What does a software program consist of, and how do we protect the intellectual property embodied in it?

Lawyers define software as a set of instructions executed by a computer with the aim of achieving a specific result. Traditionally, software is therefore said to have two faces. On the one hand, software can be protected as a literary work under copyright, and on the other hand as a technical invention under patent law. 

Copyright vs. patent law

Software is associated with literary works, since the source code written by the programmer in a particular programming language can, with some goodwill, be equated with traditional written text. Original code therefore enjoys protection under copyright. 

Copyright only grants protection to the specific form in which an idea is expressed. A developer can rely on it to prevent his or her code from being copied literally. 

However, the innovative concepts, functions and processes underlying the software are not protected by copyright. If a developer can rely only on copyright, they will not be able to prevent a competitor from bringing an application to market with similar functionality, as long as its code is written in a different way. 

Obtaining a patent provides (additional) protection for those functional elements and the technical implementation of the software. However, protecting software with a patent is not straightforward. It is granted only if the novelty requirement is met. Moreover, it is preceded by a costly and time-consuming process.

The combined use of copyright and patents (often further supplemented by protection as a trade secret and under design law) generally provides broad protection for a software application. Within the same software application, the elements that express a particular idea through code can be protected by copyright, while the functional aspects can be shielded by a patent. 

That interplay works well as long as the software components for which protection is claimed can be qualified either as an expression of an idea or as pure functionality. Drawing that distinction has, in recent years, proven to be one of the greatest challenges in the field of IP protection for software. Especially when it comes to interfaces (UI, API), that important boundary is becoming increasingly blurred. 

Such a distinction is nevertheless crucial to preserve the balance between the interests of rights holders/developers on the one hand and those of consumers and the free market on the other. Due to the evolving nature of software applications, it is becoming increasingly difficult to fit them within the framework of copyright law or patent law.

Cumulative protection?

Each intellectual property right has a specific rationale and subject matter, with the aim of granting the rights holder a form of exclusivity without creating narrow monopolies. Blurring these boundaries, rationales and characteristics of the different rights opens the door to abuse. Technology companies claiming different intellectual property rights over one and the same software element could start cherry-picking the characteristics of one of those rights that best suit their objective at that particular time. 

For example, a number of big tech companies argue that the reuse by a third party of a mainly functional component within their software (e.g. the data interface) constitutes an infringement of their copyright. Even though, in principle, those functional elements are protected under patent law, not copyright.  

Particularly in counterfeiting proceedings, allowing “cumulative protection” for software provides an especially strong shield to block the (re)use of software elements by third parties. But such broad protection of software applications would also severely restrict room for manoeuvre in the highly competitive software sector and is therefore highly controversial.

Two views

Some legal scholars advocate a broad interpretation of the protection that copyright offers to software. They believe that, in order to encourage investment in software development (and innovation in general), the original developer should be able to prevent a competitor from rewriting the same program in different source code. 

Others argue that a broad interpretation of copyright protection for software would be too powerful a tool, forcing developers to stay away from existing programs, which in turn would prevent any standardisation in the market. 

Major players such as Oracle, Google, Java and SAS have been litigating for years to settle this debate on possible cumulative protection for software in their favour. Based on recent case law from, among others, the European Court of Justice and the U.S. Supreme Court, rights holders currently seem to have to choose: a software component can be protected either under copyright law or under patent law and cannot rely on cumulative protection. The final word in this debate has not yet been spoken.

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