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Anomaly of Existing Intellectual Property Protection for Software

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Anomaly of Existing Intellectual Property Protection for Software View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Saskatchewan's Research Archive UNIVERSITY OF SASKATCHEWAN Anomaly of Existing Intellectual Property Protection for Software A Thesis Submitted to the College of Graduate and Postdoctoral Studies in Partial Fulfillment of the Requirements for the Degree of Master of Laws (L.L.M) in the College of Law, University of Saskatchewan Saskatoon By Molla Mekonen Abey Copyright Molla Mekonen Abey, May, 2017. All rights reserved. PERMISSION TO USE In presenting this thesis in partial fulfillment of the requirements for a Postgraduate degree from the University of Saskatchewan, I agree that the Libraries of this University may make it freely available for inspection. I further agree that permission for copying of this thesis in any manner, in whole or in part, for scholarly purposes may be granted by the professor who supervised my thesis work or, in their absence, by the Deans of the Colleges in which my thesis work was done. It is understood that any copying or publication or use of this thesis or parts thereof for financial gain shall not be allowed without my written permission. It is also understood that due recognition shall be given to me and to the University of Saskatchewan in any scholarly use which may be made of any material in my thesis. Requests for permission to copy or to make other uses of materials in this thesis in whole or part should be addressed to: Dean College of Law University of Saskatchewan 15 Campus Drive Saskatoon, Saskatchewan S7N 5A6Canada OR Dean College of Graduate and Postdoctoral Studies University of Saskatchewan 105 Administration Place Saskatoon, Saskatchewan S7N 5A2 Canada i ABSTRACT The digital sphere, “cyberspace,” is growing by leaps and bounds. Computers and programs are making a profound impact on every aspect of human life: education, work, warfare, entertainment and social life, health, law enforcement, etc.. So, the fact that people now need access to digital technologies to sustain modern social, economic and political life is not in dispute. Most digital devices such as computers are useless without programs. Simply stated, access to digital technologies depends highly on software. More precisely, it is practically impossible these days to find a life without the involvement of software and software-based devices. Software used to be, in the 1970s and early 1980s, applied to huge mainframe computers that took up the space of, maybe, an entire room. These days, we have software applied everywhere, in many aspects of our lives. Before the 1960s, vendors distributed and sold software bundled with computer hardware. During that time there was no clearly recognized protection for computer programs. As time went on, vendors began to unbundle software from hardware and started to provide programs to the public separately packaged. With a view to responding to the needs of industry, on one hand, and to advancing innovation, and encouraging the dissemination of useful arts for the general public on the other, different jurisdictions began to afford separate legal protections to computer software. Many jurisdictions opted for copyright protection as the best option. We also see the widespread protection of software products by patent law. In spite of the absence of legislation which directly allows for the patentability of computer software, we witness frequent disputes and litigation as regards the scope and extent of software protection. In addition to intellectual property protections, computing companies are using technological means to exclude others from using their digital works. This approach is called self-regulation. They do so by using technology: encryption, coding, etc. It is also illegal to reverse engineer and decompile computer programs. A trade secret can be used to protect computer software, especially the inner working of software. Software developers also use the law of industrial design as another form of protection for the ‘look and feel’ aspect of their software. On the other extreme, we see some movements which advocate for free and open-source software. This thesis argues the existing system has flaws and need a fix. The main problem with existing software protection is that it overlooks its special nature. There is no dispute as to why software ii is protected. Writing those millions of lines of code requires an investment of time, intellect, and money. Hence, protection is required. The issue is as to the choice of the form of protection. So, this thesis argues the blanket copyright and patent protections of software raise a fairness issue, particularly from the perspective of the consumer’s interest. It also argues the existing laws governing computer software lack clarity and certainty. Overall, the thesis discusses the existing legal framework for computer programs. It concludes that the system needs reform as it mainly considers the interest of software industry. In other words, consumers and new entrants’ interests have not been given much regard. More importantly, the thesis reflects on the general purpose of intellectual property rights and their applicability to computer programs. The most important reason for the reform is the unique nature of software. By doing so, the thesis suggests for the adoption of a special law for computer programs. iii ACKNOWLEDGMENT Where to begin? Although there are many to whom I owe thanks, certainly none are more deserving than my supervisor, Professor Martin Phillipson, committee members, Professor Barbara Von Tigerstrom and Robin Hansen, and College of Law Graduate Director, Professor Heather Heavin. Their contribution in editing the thesis and forwarding expertise comments were invaluable. I acknowledge with thanks, as well, to my supervisor, committee members and Professor Heather Heavin in approving funding requests towards the completion of the thesis. Special thanks are due to Professor Barbara Von Tigerstrom, Dr. Thomas Roberts, and Lorrie Sorowski. Professor Barbara, I am grateful for your assistance. You were the one who helped me in the admission, grant permission, and deferral processes. I would like to thank my family and friends (Violet), and special thanks to my girlfriend, Azeb Getnet, for her never failing enthusiasm and encouragement. The unpayable debts are to my God, for his unconditional love and for giving me helpful persons in my life. iv TABLE OF CONTENTS PERMISSION TO USE ................................................................................................................... i ABSTRACT .................................................................................................................................... ii ACKNOWLEDGMENT................................................................................................................ iv TABLE OF CONTENTS ................................................................................................................ v LIST OF FIGURES ...................................................................................................................... vii INTRODUCTION .......................................................................................................................... 1 CHAPTER ONE ............................................................................................................................. 9 1. The Notion of Software/Computer Programs .......................................................................... 9 1.1. Defining computer software ............................................................................................. 9 1.2. Legal/technological aspect of software .......................................................................... 11 2. The big bang of computer software .......................................................................................... 17 3. Taxonomy of computer programs ............................................................................................. 21 3.1 Application and System Software .................................................................................. 21 3.2 Free and Proprietary Programs ....................................................................................... 22 3.3 Program Source Code and Object Code ......................................................................... 23 4. Justifying the protection of computer programs ....................................................................... 24 CHAPTER TWO .......................................................................................................................... 31 2.1 Patenting Computer Software ............................................................................................ 31 2.1.1 Software patents in the U.S. ....................................................................................... 32 2.1.2 Software patenting in Canada ..................................................................................... 39 2.1.3 Software patenting in the European Union ................................................................. 42 2.2 Copyrighting Computer Software ...................................................................................... 46 2.2.1 Copyrighting software: International instruments ...................................................... 47 2.2.2 Copyrighting software in the U.S ............................................................................... 47 2.2.3 Copyrighting software
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