8 August 2019

Intellectual property is a broad concept that covers several types of legally recognised rights originating from some intellectual creativity, or that are otherwise related to ideas. Intellectual property rights are rights to intangible things, that is, ideas as expressed (copyrights), or as embodied in practical implementation (patents). Generally, intellectual property rights are rights in ideal objects, which are distinguished from the material substance in which they are instantiated. In today’s legal systems, the principal forms of intellectual property are (i) copyrights, (ii) trademarks and (iii) patents.

Copyright is a right given to authors of “original works,” such as books, articles, movies, and computer programs. Copyright gives the exclusive right to reproduce the work, prepare derivative works, or to perform or present the work publicly. However, copyrights protect only the form of expression of ideas, not the underlying ideas themselves. While there is a possibility to register a copyright with a competent registration authority to obtain certain legal advantages, such registration is not a prerequisite for a copyright to exist. A copyright comes into existence immediately upon the production of the work in a “tangible medium of expression,” and lasts for the life of the author plus an additional period (depending on country-specific intellectual property regulations) in which the author exclusively owns the copyright.

A trademark is a word, phrase, symbol, or design used to identify the “producer,” i.e. the source of goods or services sold, and to distinguish them from the goods or services of others, i.e. market competitors. For example, Apple Inc.’s “bitten apple” mark that appears on their products identifies them as products of that company, distinguishing them from competitors such as Samsung. Trademark law primarily prevents competitors from using confusingly similar marks to identify their own goods and services. Unlike copyrights and patents, trademark rights can last indefinitely if the trademark owner continues to use the mark and renews its registration with the competent registration authorities under applicable statutory regulations.

A patent is a property right in inventions, i.e. in devices or processes that perform a “useful” function. A patent effectively grants the inventor a limited monopoly on the production, use, or sale of the invention. However, a patent only gives the patentee the right to prevent others from practising the patented invention – it does not grant to the patentee the right to use the patented invention. Moreover, not every innovation or discovery is patentable, for example, in the US, there are three categories of subject matter that are non-patentable – laws of nature, natural phenomena, and abstract ideas.

Recently, the legal protection of intellectual property rights in software is subject to much debate. Considering that software is one of the main pillars of the information society, this is truly an issue of global concern. Arguably, the process of writing software or coding is highly creative, and the software industry is one of the most valuable in today’s knowledge-based economies. However, the subject which gives rise to much controversy is – what type of protection should software enjoy? As discussed above, for intellectual property to be legally protected as a copyright or a patent it has to meet certain requirements.

Computer software is a collection of coded instructions, written in a language, which can be read by a computer (programming language). However, in order to enable the running of a particular software application it has to be installed on adequate hardware (PC, laptop, smartphone, set-top box and others) equipped with a proper operating system (a special software application that creates an environment for the installation and running of different software, for example Mac OS/X or iOS, Microsoft Windows, Ubuntu and others). Therefore, the production of software goes well beyond only coding, since depending on its specific use, it has to be functionally integrated within specific hardware and operating system environment.

Considering the above, currently, there are different approaches relating to the legal protection of software. For example, the US courts have accepted that software can be protected by way of awarding of patent rights through the use of “article of manufacture” argument. The US “article of manufacture” argument is based on the concept involving a computer-readable medium, for example, USB, CD/DVD which contains a set of instructions that causes a computer to perform a specific process. In contrast, in Europe, computer programs that make no technical contribution are not patentable. The rationale behind the European approach is that a computer program cannot be patentable if it does not have the potential to cause a “further technical effect”, beyond the inherent technical interactions between hardware and software. Consequently, a computer-implemented invention, which does not meet the criteria of “further technical effect”, that is, it does not meet the general patentability requirements as inventions in other fields, cannot be patented in Europe. In this respect, software or computer-implemented inventions can be patented in Europe only if they meet the following criteria (i) they have technical character and solve a technical problem; (ii) they are new, and (iii) they involve an inventive technical contribution to the prior art.

Although many countries have been influenced by the US approach in view of expanding of patent protection on software, there are still plenty of countries which only provide for the protection of software as copyright under their legal systems. As discussed above, the copyright is immediate upon the production of the work, and it provides for the protection of copying by other persons by requiring the latter to obtain a copy from the creator in return for monetary gain (it is primarily considered as “literary work” in the context of software). On the other hand, patents provide better protection since they exclude other persons from making, using, selling or offering to sell the patented invention.

In respect of the time of protection provided, copyright provides for a more extended period of protection than patents. However, this is not a major advantage since the rapid development of technology renders software obsolete very quickly. Patents also have an advantage over copyright since they protect from all infringers – as opposed to copyright, which protects only from infringers who directly copy the work. Patents provide protect from independent creation of the same work, while copyright does not. However, copyright has a significant advantage in relation to the registration requirements and the costs thereof – it does not need any registration to be legally valid, while patents need to undergo a specific examination procedure by the relevant authorities which, generally, is expensive and long. Moreover, in a number of jurisdictions, to be able to obtain a patent on software, the applicant is required to demonstrate the “further technical effect” of its computer-implemented invention.

Gjorgji Georgievski, Partner

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