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Tuesday, August 2, 2011

Why is Software Protected by Copyright (and generally not by patents)?

This post is based on an answer I gave on Yahoo! Answers. The question has been rewritten and the answer has been modified from the original.

This question rightfully deserves a thesis or academic paper. This post merely describes practical reasons for the preferred automatic form of protection for software. It does not explore the reasons for patentability (or non-patentability) of software.

Software is inherently a creation based on language, and for this reason, copyright is appropriate to protect programs as a species of 'literary work'.

Generally, patents protect  products, methods, processes, compositions of matter, and improvements of the foregoing (definitions vary from jurisdiction to jurisdiction), that fulfill the requirements of patentability (novel, inventive and useful.

Since software in fact involve processes (i.e. they have functions based on algorithms), it seems that they can be covered by patents. The question of whether software should be patented has seen many debates and discussions, but there have been some 'software patents' in the US.

It is interesting to think of the reason why software is primarily protected by copyright rather than patent as being rooted in practicality, rather than the technical or legal definitions of copyrightable and patentable work.

The historical basis for software being protected primarily by copyright is very excellently described in a paper by Scott L. Garren. There the author pointed out that although patents were recognized to be a form of protection for computer programs, the difficulties in acquiring patents and their disadvantages to copyright made them less attractive to programmers. These reasons are explained below.

Although patent protection is long enough (17 or 20 years or so, depending on country and year of patent application), copyright protection is longer (lifetime of the author plus 50 or 70 years, depending on country and year of publication). Nowadays we realize that software is upgraded/improved so quickly that such a long term of protection is unnecessary.

Patents also provide stronger protection; any use (in any media) of the same method is considered infringement. Copyright only protects, well, in its very essence, copying. Software would then be better protected by a patent. But generally, software developers do not seek patent protection in addition to the automatic copyright protection they enjoy.

There are other disadvantages to patents, making it the less desired protection for software.Patent applications require complete disclosure of the invention; prior to copyright protection, software were considered trade secrets. Even now, unless they are open source or their source code is disclosed, programs can be kept confidential, yet still enjoy copyright protection.

Patents are only granted to inventions that demonstrate novelty and inventiveness. On the other hand, copyright only requires originality.

Preparing a patent application is a highly laborious and technical process, requiring the engagement of an experienced and qualified patent attorney, followed by years of examination by the patent office. Before the patent is granted, the software would likely have become obsolete. Copyright used to require mere registration; today registration is not even necessary and works are protected by copyright from the moment of their creation.

Patents are valid only in the country where the patent exists. Getting a patent in multiple countries takes years and a lot of money. Copyright, due to the numerous treaties on the matter, are effectively worldwide at no or minimal cost to obtain. This is certainly more appropriate for the digital age.

So in summary,  one reason copyright protects software is because programs are 'literary works' in that they are based on a 'language'. However, there are many more practical reasons why copyright is preferred to patents in protecting software.

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