Protecting Innovation in Computer Software, Biotechnology, and NanotechnologyExpressO (2010)
AbstractIn the 1970=s, paying virtually no attention to the fundamental distinction between patent and copyright subject matter, Congress decided to protect computer programs as a Aliterary work@ under copyright law. As a result, a work of technology for the first time was consciously placed under the protective umbrella of a statute designed for art, music, and literature. While the vulnerability of computer program code to cheap and easy verbatim copying supplied a policy basis for Aanti-copy@ protection of code, courts often analogized these congressionally anointed Aliterary works@ to broadly protected novels and plays rather than thinly protected technical specifications and rulebooks or treating them as sui generis works. More than 30 years later, courts still struggle to work out the appropriate degree of copyright protection in computer programs. Now it appears that two newer technological areas B biotechnology and nanotechnology B may raise similar justifications for applying something like copyright to innovation within their domains. Synthetic biology shows promise, in the near future, of reaching the point at which new biological functions will be created by the complex combination of Aoff the shelf@ biological parts, each of which can be represented by strings of letters, just as computer programs can be represented by strings of 1=s and 0=s. If these strings of letters are readily discernible from the final product, new biological products may become vulnerable to cheap and easy copying, which was the policy basis for placing computer programs under copyright. While nanotechnology is not yet at such a stage, at least some visionaries see its reaching the point at which literally anything can be made cheaply and easily once the Ablueprint@ for combining atoms is available. At that point we can expect calls for something like copyright to inhibit misappropriative copying of technological innovation in these fields. This article seeks to extract lessons from our 30-40 year experience with copyright protection of computer software to apply for the encouragement of innovation in the biotech and nanotech arenas. The underlying thesis is that applying copyright directly to solve the software misappropriation problem was a mistake and that a sui generis statute protecting only against literal or near-literal copying of code, for a much shorter term, would have been preferable. When biotech and nanotech reach the stage at which new functional products will be, like complex computer programs, designed by application of well understood engineering principles in a straightforward manner B costing time, skill, energy, and money but not involving much, if any, patentable invention B we should resist calls for protection under copyright and devise a scheme that more aptly addresses the underlying problem.
- intellectual property,
- computer software
Publication DateSeptember 3, 2010
Citation InformationDennis S Karjala. "Protecting Innovation in Computer Software, Biotechnology, and Nanotechnology" ExpressO (2010)
Available at: http://works.bepress.com/dennis_karjala/6/