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4 Rev. Econ. Rsch. on Copyright Issues 3 (2007)

handle is hein.journals/rvwoecrh4 and id is 1 raw text is: Review of Economic Research on Copyright Issues, 2007, vol. 4(1), pp. 3-14 PATENT AND/OR COPYRIGHT FOR SOFTWARE: WHAT HAS BEEN DONE SO FAR? RICHARD WATT ABSTRACT. The particular case of software seems to have stretched the patent- copyright divide to the point of breakage. Inspite of being traditionally ex- cluded from patent, software is an obvious case of a single creation that em- bodies both expression and innovation, and so strong arguments exist for software to be both copyrightable and patentable material. The legal profes- sion has looked carefully at the patentability of software over the past 15 years or so, both from a fully legal perspective, and using economic-type arguments. But we are still waiting for the economics profession per s6 to set to work on this issue. Here, I shall go through some of the most well known arguments sur- rounding the protection of software, and then put forward a personal opinion as to what theoretical economists are likely to add, if and when they include this important question on their research agendas. 1. INTRODUCTION It is crystal clear that software is entitled to both copyright and patent protection. It should also be crystal clear that these forms of protection should not be mutually exclusive. There is no justifi- cation whatsoever in the Constitution, the federal statutes, or the case law to justify a denial of joint patent and copyright protection for software. (Einhorn, 1990 p. 278) The above quote is now more than 15 years old, and in spite of that, many parts of the world are still debating whether or not software protection should or should not be extended from copyright to include patent as well. Together with this quandrum, software is now also increasingly released under open source licenses, a mechanism that seems to fly in the face of both traditional forms of intellectual property protection. Ever since it was first conceived formally and embodied into legal doctrine, in- tellectual property has been divided into two principal branches - patents and copyrights. Copyrights protect expression of ideas, and patents protect innovative ideas themselves. While initially these two categories were quite likely sufficient to provide an all encompassing and mutually exclusive description of all possible creations of the mind, it is becoming increasingly clear that this is no longer true. It has been repeatedly noted by legal scholars that there exist many cases of intel- lectual creations that require new sui generis regimes (see, for example, Reichman 1994), and it is also clear that there are creations that can satisfy the basic defini- tions of both copyright and patent. Most notably, the case of computer software has been repeatedly discussed; see for example Samuleson et al. 1994), since software seems to provide the most important example of a creation with clear aspects of 3

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