Kernochan Center for Law, Media and the Arts
The "Manifesto Concerning the Legal Protection of Computer Programs"' offers an extensive and challenging critique of current intellectual property protection of software. The authors argue strongly that the law should focus on the value of the know-how embodied in programs and the importance of protecting it, rather than on the particular means which might be used to appropriate it.2 The authors seek to compel reconceptualization of the place of computer programs, and of software authors' creativity, within the domain of intellectual property. However, their brief for change manifests several flaws. Paradoxically, it comes at once both too soon and too late. In addition, its expectation for the adoption of its proposed alternatives is too optimistic, while its perception of the ability of copyright law to afford appropriate protection for computer programs is too pessimistic. The Manifesto's objectives and the moment chosen for their declaration are perplexing, if not quixotic. As the authors on several occasions acknowledge,3 the computer software industry is currently thriving. Moreover, copyright protection for computer programs has now become the worldwide norm. Not only the U.S., but the E.C. and all members of the General Agreement on Tariffs and Trade have determined to protect computer programs as literary works, within the meaning of the dominant international copyright convention.4 Even supposing that a specter of over- and underprotection haunts the software industry, the alternative intellectual property regimes the authors evoke are likely neither to achieve domestic enactment, nor to secure broad and effective international agreement. Finally, the Manifesto's essential premise, that copyright law ill befits computer programs because the law does not protect works that "behave," betrays too cramped an appreciation of the subject matter and scope of copyright protection. Copyright does, to some extent, protect "behavior," whether of computer programs or of other works of authorship. The primary problem is to delineate how much "behavior" copyright will cover; but that problem haunts all of copyright. If the specter the Manifesto summons is not entirely spurious, neither is it purely computer-specific.
Jane C. Ginsburg,
Four Reasons and a Paradox: The Manifest Superiority of Copyright over Sui Generis Protection of Computer Software,
Colum. L. Rev
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/61