The Need to Revise Copyright Law to Reflect the Changing Costs and Benefits of Modern Digital Reuse of Artistic Creations

Copyright law has always sought to maximize the quantity of valuable creative works available to society. While protecting the creative artists is essential, it is in some sense incidental; the reason to protect the artist is that them, there would be nothing to copy. As new digital technologies for transforming artistic works gain in capability, the ease of producing innovative and valuable works based on the reuse of prior work increases, meaning that society can now benefit from an increased supply of works based on the reuse of others. This suggests that restrictions on reuse that were considered optimal in the past should now be relaxed. We suggest changes to copyright law to achieve this new optimum. We suggest that artistic merit should once again be considered relevant to copyright law, in this case to determine when artistic works should be permitted to reuse works still subject to copyright protection. We retain the concept of originality in deciding when works based on reuse should themselves be granted copyright

Computer Programs, User Interfaces, and Section 102(b) of the Copyright Act of 1976: A Critique of Lotus v. Paperback

The Supreme Court\u27s landmark ruling Lotus Development Corp vs Paperback Software International is critiqued. The ruling did not resolve the issue of whether copyright law protects user interfaces

Not All Bad: An Historical Perspective on Software Patents

This Paper places the current debates about software patents in the historical context of patenting in the information technology industries. The first computer-program products were sold in the mid 1960s when software patents were not generally allowed; as a result, trade secrecy became endemic to the software industry. Software products were also protected by copyright, but in practice this offered little protection against most forms of appropriation by reverse engineering or cloning. By the early 1980s a series of landmark cases led to the acceptance of software patents. It is argued that this development was consistent with the patenting of algorithmic inventions that long predated the invention of the computer. In the 1990s, business method patents were accepted. Again, it is argued that this development was consistent with the virtualization of inventions that long predated the Internet. It is shown that patents offer similar benefits to the software industry as for other technological industries, as well as some old and new disadvantages. The Paper draws three main conclusions. First, from an historical viewpoint, software patents are not radically different from those of other technologies; the patent system has adapted to the particular demands of new technologies over time, and the software patent system is already making such adaptations. Second, patents are superior to the alternative IP regimens of trade secrecy and copyright, primarily because of the public benefits of disclosure. Third, patents offer the most economically efficient way of co-ordinating multiple R&D investments in major software technologies

Knowledge and innovation in intellectual property : the case of computer program copyright

Information economics 1s used to develop a model of technological innovation which is applied to the case of computer program copyright. A critical outline of the neo-classical economic perspective of innovation and Arrow's concerns regarding appropriability of information is provided. This perspective justifies intellectual property institutions as a correction of market failure and as a "reward for invention". The same literature marginalises countervailing arguments including monopoly distortions, alternative sources of innovator reward and the potential for anti-competitive strategies. Information economics provides a distinct and preferred perspective in the analysis of technological development and in the role of intellectual property in the promotion of innovat~on. The conception of information as a resource, rather than as a commodity, implies that information is part of a shared technological capital, whose indivisibilities should be exploited for social benefit. The information perspective conceives innovation as a messy, evolutionary and interactive process involving many participants, and a cycle of innovation characterised by incremental improvements, imitation and learning strategies, and technological trajectories influenced by bounded rationality. These environments will also generate powerful network externalities. A model of innovation based on these assumptions is developed which incorporates two major distinctions. One is between tacit and codified knowledge; the other is between technology and technological artefacts. This knowledge-artefact distinction is defined in the innovation model by the concept of an information technology artefact, characterised as a physical product whose underlying means of creation is not communicated by mere possession of that product. This innovation model is reconciled to the intellectual property regimes of confidential information, patent and copyright, demonstrating the use of legal doctrines to encourage the diffusion of tacit knowledge through society. Applying the innovation model to the question of computer programs, it is argued that programs in their executable of machine code forms correspond to the concept of an IT artefact, in that possession of machine code does not imply access to the underlying source code. The process of software development and the utility of decompilation are discussed in this context, particularly the lack of isomorphic correspondence between machine code and third or higher generation source code languages. The close analogy between the software development model and the scenario of confidential information suggests a limited role for copyright of computer programs beyond a prohibition of literal copying or piracy. Arguments favouring broader protection of non-literal elements of computer programs are critically reviewed and prescriptions for proprietary protocols, user interfaces and standards in the literature are rejected as inconsistent with the realisation of network externalities by the software industry. An information economics perspective instead recommends the encouragement of reverse engineering and imitative competition provided that developers implement their own source code solutions to invest in the diffusion of tacit programming knowledge. Decompilation should be permitted to provide a limited degree of access to internal interfaces and communications protocols. Elements of a user interface should not be protected. Copyright regimes in the United States, Europe and Australia are assessed against the policy prescriptions generated by the application of the innovation model to computer programs. The influence of political actors and international pressures such as TRIPS are noted. It is hoped that the infusion of an information economics approach might trigger the switch in perspective needed in policy debates to preserve the integrity of the intellectual commons