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2 L. Computer & Artificial Intell. 3 (1993)

handle is hein.journals/infctel2 and id is 1 raw text is: Law, Computers & Artificial Intelligence, Volume 2, Number 1, 1993

Software Protection under
European Community Law
ANDREAS WEHLAU
Rechtsreferendar, Germany
ABSTRACT The European Community has enacted a Directive for the
harmonisation of national copyright laws in respect of computer software.
This paper briefly discusses alternatives to copyright as a means of
protection before outlining some fundamental problems of using copyright
for software protection: the basic distinction between idea and expression
causes difficulties with formal programming languages. A secrecy
protection cannot be afforded by copyright. The situation of economic
power and interest is quite different in the software sector. Nevertheless
the greatly differing case-law in Europe makes harmonisation desirable.
After a short description of the Directive, some inconsistencies in this
Instrument are pointed out: the program idea is expressly not protected,
but the access to the Idea Is restricted. Further contradictions arise, where
an idea is inseparable from its expression. The provisions allowing reverse
analysis only in order to gain interface Information are meaningless, since
any part of a program could potentially become an interface. Conflicts with
patent legislation are not addressed in the Directive. This paper concludes
by proposing a restrictive interpretation of some provisions of the
Directive, thus giving priority to the principle of non-copyrightability of
ideas and allowing reverse analysis of software as a legitimate way of
reading program information.
Protecting Computer Programs
The protection of computer programs from illegitimate copying has been
a legal issue for many years. The debate was intensified [1] when the
Commission of the European Communities issued a proposal for a
Directive on copyright for software.[2] This proposal was - after a
controversial discussion and several official amendments - finally passed

3

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