Meisya - Thursday Talk Revised

COMPUTER PROGRAM:COPYRIGHT OR PATENT?

Jakarta, 18 August 2016

ASEAN INSIDERS by origin and passion

Meisya Andriani Lubis

Computer programs are classified as intellectual property.Unlike other forms of intellectual property, they serve awide variety of functions, making them difficult to classifyunder traditional categories of intellectual property.However, there still exists today a great deal of uncertaintyin the law protecting computer programs.

Computer Program

A set of instructions expressed in words, codes, schemes or in any other form, which is capable, when incorporated in a

machine readable medium, of causing a “computer” an electronic or similar device having information processing

capabilities to perform or achieve a particular task or result.

(WIPO, Model Provisions on the Protection of Computer Software)

TRIPS

Berne Convention (1971)

“The expression “literary and artistic works” shall include every production in the literary, scientific and artistic

domain, whatever may be the mode or form of its expression.....”

(Article 2 (1))

WIPO Copyright Treaty

“Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such

protection applies to computer programs, whatever may be the mode or form of their expression.”

(Article 4)

There are two important element of program computer:

1. The underlying process and alogarithm system. This element can be equated with a process or system that will be able to be protected within the scope of the patent;

2. A series of instructions that explain the process in detail. This element is an expression of a series of instructions as outlined of writing that is protected by copyright.

COPYRIGHT

Article 9 (2) TRIPS

Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

The purpose of copyright law is to grant to authors a limitedproperty right in the form of the original expression of anidea. The protected expression must be "fixed in anytangible medium." The protection afforded to copyrightedmaterials may include economic rights, prohibiting thereproduction, adaptation, distribution, performance, anddisplay without the consent of the copyright owner. It mayalso consist of moral rights, protecting the author'sreputation and his right to claim authorship of thecopyrighted work.

Advantage

1. Copyright protection is relatively easy to obtain. The requirements of "originality" and "expression" are relatively easy to meet, and they will preclude protection of only the smaller, simpler programs.

2. The term of protection under copyright law is far longer than that afforded by other forms of protection.

3. Protection is automatically applied, in most jurisdictions, when the author first fixes his work in a tangible medium.

Disadvantage

1. Copyright merely protects the expression of an idea. The underlying idea of the program may be legally copied by one who writes a program that will perform the same functions but uses a different computer language and/or sequence of instructions.

2. An author could independently write a program exactly the same as a previously written program. Although this is highly improbable, the second author's work would not infringe on the first.

3. Since the active life of an ordinary program is relatively short, the long-term protection provided by copyright will serve only to inhibit development of programs.

4. By adding computer programs to the list of subjects protected under existing copyright laws, the protection provided to other subjects of protection may be subject to great confusion.

PATENT

A patent is an exclusive right granted for an invention,which is a product or a process that provides, in general, anew way of doing something, or offers a new technicalsolution to a problem. To get a patent, technicalinformation about the invention must be disclosed to thepublic in a patent application.

Advantage

1. Patent can protect the idea underlying a product or process as well as the specific form. This provides the creator with the right to prevent the use of the device or process even if created independently by a third party.

2. To obtain a patent, the inventor must disclose his invention in the patent application. His product, while protected under the patent law, would be disclosed to the public for others to use in the development of technology.

3. The term of protection is shorter than copyright, and therefore better suited to the limited life span of computer programs. The result is to give the inventor a short term, powerful monopoly in his creation.

Disadvantage

The acquisition of a patent is expensive and time consuming. An applicant must first file an application with the Patent Office, search for any prior inventions, and fulfill the requirements of utility, novelty, and non obviousness. If available, patent protection would probably extend only to one percent of all programs written.

The controversy is linked to the unique nature of computer software that performs technical functions through creative expression. Although copyright protects “literal expressions” of computer programs, it does not protect “ideas” behind the computer programs, which often are a core part of their commercial value.

Example

For example, two programs with different text (that is,different “expressions”) can carry out a substantiallyidentical function. Under copyright, the second comer candevelop a program having an identical function, but whichexpresses a completely different text. Since, in fact, ideasbehind programs often provide technical functions such ascontrolling machinery or regulating room temperature,program developers started to seek protection of computersoftware through the patent system.

In other words, copyright law merely protects the specific expression of code in a program. Patent law, on the other hand, protects the underlying functionality of the program; it protects what the code does, not just how it is written. Therefore, in general terms it has been said that copyright protects against piracy, while patents protect against copying by competitors.

Nearly all judicial authorities and academic commentatorsagree that copyright law is applicable to protect the mostexpressive aspects of widely distributed computer program.Neither judges nor academic commentators agree,however, on the proper extent of copyright protection forcomputer program, nor have they agreed on whetherpatent law should be applicable at all to computer program.

Sources

• Howard K. Szabo, International Protection of Computer Software: The Need for Sui Generis Legislation, 8 Loy. L.A. Int'l & Comp. L. Rev. 511 (1986). Available at: http://digitalcommons.lmu.edu/ilr/vol8/iss3/3

• Griem, John M. Jr. (1993) "Against a Sui Generis System of Intellectual Property for Computer Software," Hofstra Law Review: Vol. 22: Iss. 1, Article 4. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol22/iss1/4

• Makarim, Edmon. Pengantar Hukum Telematika – Suatu Kompilasi Kajian. (Jakarta: Badan Penerbit FHUI, 2005). page. 8

• Berne Convention for the Protection of Literary and Artistic Works 1971)

• The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

• The World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty or WCT)

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ASEAN INSIDERS by origin and passion

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