Software and the law
Software and the law

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Software and the law

2.1 Motivations for IP laws

Over the past 200 years two different legal approaches have developed: copyright, to protect written works and music and similar, and patents, to protect inventions and their subsequent exploitation in manufacture. Copyright protects the expression of an idea, while patents protect the physical manifestation of that idea. Different countries may have enacted slightly different laws, but generally these kinds of laws have been thought beneficial and have been widely adopted, and have become the subject of international agreements. Activity 1 explores the different motivations for intellectual property laws.

Activity 1: Why have intellectual-property laws?

Why do people in the developed world regard intellectual property law as so important? And why might people in Asia or Africa take a different view?

Discussion

The usual Western response is to treat software and information works like other property. The idea of property rights, where the property involved is physical in nature – as with a house, motor vehicle or television set – is well established. It would generally be agreed that such objects can be owned by a person or an organisation for their exclusive use, and that the owner is free to sell the object, or hire it out, or profit financially from it in other ways. This economic activity would be seen as a fair recompense for the labour involved in building the house or other goods or the capital outlay in purchasing the house, motor vehicle, television set, or other goods. Most people in the developed world would agree that the law should protect the owner’s right to undertake this economic activity and prevent the theft of such property, but also that the law should regulate the activity – for example, to limit monopolistic and extortionate activity.

What about the fruits of creative activity – as with the composition and performance of music, the writing of a novel, the invention of some new device, or the writing of software? These intangibles are known as intellectual property – property that has resulted from the work of the intellect. Most people in the West now agree that these have tangible value that needs to be protected and regulated. The argument is that if we did not do this, people would stop producing intangibles such as these although there are a number of counterarguments to this view.

However, elsewhere in the world – in Africa and most of Asia – people might think differently. The idea of property being private might be challenged, for example some cultures may well be collectivist and wish to see goods that can be shared as public goods. In such communities we might expect open-source software to be popular, not because of its low cost but because it aligns better with cultural beliefs.

There are arguments in favour of intellectual property rights (IPR) and that all countries should enact and enforce laws to protect them. If a country did enact IPR law to protect the intellectual property of other countries, this would also protect rights of intellectual property generated within the country, helping them in export sales and also in obtaining foreign investment. Investors would want the protection of the law for the products they produce in a particular country, for without that a return on their investment would not be realised (see, for example, Zavin and Martin, 1997). In the short term there might seem to be benefits from avoiding copyright, particularly on material that would otherwise have to be imported at great cost. However, in the long term a country is likely to benefit from respecting copyright and from other countries implementing copyright so that all exports could in turn generate income.

Intellectual property has tangible value and needs the protection of the law, particularly if copying is easy and cheap. This protection needs to be international.

However, there are also strong arguments against the protection of intellectual property in specific situations. These are based on ideas of common good which should not be withheld – for example, if an invention protected by IPR could save a life, should it be withheld? To some, the protection of IPR, particularly for technology and science, by more developed societies mitigates too strongly against less developed societies. Software products may be covered by copyright and patents in some countries. However, Richard Stallman and others (see Stallman, 2002) have argued against software idea patents – now a reality in the US – and this is currently an issue of much debate.

If a software enterprise is seeking to operate internationally it is important that intellectual property issues and the different views about intellectual property in different countries be taken into account. We start by looking at international bodies and agreements, to establish concepts and set a context within which copyright, patents, and other aspects of IPR can be described and discussed.

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