Software protection: What’s the right way to go? | Latin America
June 15th, 2012 by Danny G. Pérez y Soto - B&R Research
Many of the most important issues in intellectual property in Latin America are the challenges that new technologies pose to old IP laws. One of these controversial topics is the protection to software, a discussion that has already been held in most developed countries but has been largely neglected in Latin America.
Software or computer programs are understood as the group of instructions written in the form of functions in order to get a computer to perform a specific process. The protection of software depends on its registry, and on the kind of legal protection in each country.
Copyright v. Patenting.
The main debate on software protection, is not on whether if it should be protected, but on how to best protect it. The trends worldwide are divided between copyright protection and patent protection; and, although the object of protection is basically the same, the kind of protection awarded is radically different.
On one hand, copyright protection of computer programs, protects the creation against the replication of the code of a given piece of software, but it does not prevent other authors from writing their own embodiments of the underlying methodologies. The real subject of protection is the code of the program, but in software coding the same process can be achieved through many different ways.
On the other hand, patenting protects not the code of the program, but the function the software is intended to serve. So if a new program is created with a different code but fulfills the same function, there would be patent violation. However, problems arise with patent protection: i) When obvious functions are patented, creativity and innovation are seriously affected; and even open source and open licensed software may be affected. ii) Some of the public interest goals of the granting of patents are not met when software is patented. When a patent is granted, public interest is benefited by the disclosure of the invention, and by the possibility of licensing such invention to create further innovation. With software patents, it is almost never useful for other programmers the disclosure of the protected programs since the code may not be readable or the function may be achieved by other means.
The Current State of Software Protection.
The general trends on this issue are divided between the developed and the developing countries. The US, the European Union and Japan all allow software patenting –admittedly, under different circumstances–; this is probably due to a political agenda looking for the protection of their tech marketplace, especially since these countries gather the most important companies in software development.
Latin American countries, following the rules of the Berne Convention, protect software exclusively through copyright. This protection is usually broad enough to incentive innovation and to ensure appropriate remuneration for the author. However, the patenting of software is an issue still left to be discussed, and proposals in favor of software patenting may arise as the Latin American market embraces new technologies and becomes a software developer.
This a complex and still obscure issue in IP, from B&R Latina we’ll keep on researching on current trends on software protection, and more detailed guides on software protection will be published.