1. IPRs and Software:
History, Challenges and Prospects
VIII Congreso Mundial
de Derecho Informatico
Cali, 28 de octubre, 2008
Richard Owens, Director
Copyright and ew Technologies Division
World Intellectual Property Organization (WIPO)

2. Overview
Copyright and software
*
Patents and software
*
Open Source Software (OSS), including main IPR
*
issues
Coexistence of OSS and commercial/‘proprietary’
*
software (mixed platforms)
A word on software piracy
*

3. Copyright protection of software
Initial work in 1970s-80s to develop sui generis system of
*
software protection.
WIPO Model Provisions on the Protection of Computer
*
Programs (1978, but not followed by governments).
Consensus emerged (1985-90): software is an author’s
*
creation, but with a technical character.
1991 EU Directive on the Legal Protection of Computer
*
Programs
1994 TRIPS Agreement
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1996 WIPO Copyright Treaty (WCT)
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4. Copyright protection of software
Rights protected:
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– Reproduction
– Adaptation
– Distribution
Exceptions to rights:
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– make backup copy
– decompilation/reverse engineering
converting source code into object code, to understand how a
•
program works
but decompilation is limited to obtaining information necessary for
•
interoperability
Decompiled code cannot be shared! (cf Free and Open-Source
Open-
•
software)

5. Patent protection of software
Software-related inventions now patentable in many
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jurisdictions.
Applies to computer programs per se (a few countries)
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or software as a part of a ‘computer-implemented
invention’ (more countries)
Basis for patent protection – copyright protects ‘literal
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expressions’ of computer programs, but patents
protect underlying functionality of program, what the
code does, not just how it is written.
Software patents are controversial at global level (eg,
*
rejection of proposed EU Directive on computer-
implemented inventions in 2005).

6. Arguments in favor of
patent protection for software
Patents protect the concepts underlying
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computer programs, promote development of
software and computer-related industries.
Patents recognize that both software and
*
hardware exhibit technical behavior (software
provides a set of instructions to hardware).
TRIPS A. 27: patents for all inventions that are
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“new, involve inventive step, capable of
industrial application” – technological
neutrality

7. Arguments against
patent protection for software
Double protection of software (copyright + patent) is
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excessive.
Software patents are expensive, small inventors and
*
companies are disadvantaged.
Software patents inhibit competition, restrict
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cumulative innovation, and limit development of open
standards for interoperable products and services.
Software patents may conflict with Free Software and
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Open-Source licenses.

8. Patent protection of business methods
Some countries, led by US beginning with 1998 State
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Street Bank and Trust decision, protect business
methods.
In re Bilski case, US Court of Appeals for the Federal
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Circuit, could limit patent protection for business
methods:
(1) what standard should apply in determining
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whether a process is patentable subject matter;
(2) extent to which a method of process must be tied
*
to physical embodiment or machine, in order to be
patentable.

9. Open-
Open-Source Software (OSS)
OSS is software for which the underlying
*
source code is available to users so that
they may read it, make changes to it, and
build and distribute new versions
incorporating their changes.

10. Free and Open-Source Software
Open-
(FOSS)
OSS is “free” in sense of freedoms granted to user, not
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gratis as in cost-free.
Grew out of Free Software Foundation founded by
*
Richard Stallman in 1985.
But FS and OSS are not the same:
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– Free software: non-free software is a social
non-
problem (Richard Stallman)
– OSS: non-free software is sub-optimal (Linus
non- sub-
Torvalds)

11. Open-
Open-Source Software (OSS)
General characteristics of OSS licenses:
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– free redistribution of source code;
– availability of source code;
– users are allowed to create ‘derived works’
(adaptations, derivative works) by modifying source
code;
– users may distribute the modified code;
– the licenses must be technologically-neutral.
technologically-neutral.

12. Open-
Open-Source Software (OSS)
More than 70 different OSS licenses, GNU
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GPL most popular, followed by BSD.
Governments are turning to OSS:
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– Brazil, Cuba, Ecuador, Venezuela
– China
– The Netherlands, France, Croatia
– U.S. Navy

13. OSS and Copyright
FS and OSS licenses are based on copyright,
*
usually the copyright owner’s right of
distribution.
Contrary to popular belief, OSS licenses do not
*
involve abandonment of copyright in code (in
legal terms, both FS and OSS are ‘proprietary’).
Recent US case, Jacobsen v. Katzer, affirms that
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OSS licenses are copyright licenses, not merely
contracts.

14. IPR issues concerning OSS
The “viral effect” of the GPL - what is the definition
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of a ‘derivative work” under copyright?
What is the extent of patent rights in any source code
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licensed under OSS? How does the ‘viral effect’ of
GPL interact with patent rights?
Effect of GPL V3, A. 11 – programmers must confer
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patent licenses to cover all redistribution of code
under GPLv3; initiation of patent lawsuit will
terminate the programmer’s rights under GPL.

15. Coexistence of
OSS & commercial software
Many business models involve OSS in combination
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with commercial software. A growing number of
these are revenue-generating.
Use of OSS in mixed platforms can offer benefits,
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such as reduced costs and faster development cycles.
But technical and licensing implications merit careful
*
attention, particularly where software patents may be
involved.

16. Software piracy
Software piracy is a global problem that saps
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resources that could go into product development.
Creators and investors of commercial, OSS and free
*
software are all damaged by piracy
Piracy becoming easier due to migration from
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physical media such as CDs to the Internet, and
particularly to file-sharing services.
BSA Global Software Piracy Study for 2008 estimates
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that 38% of software installed on PCs worldwide was
obtained illegally.

17. Relevant WIPO activities
Regional awareness-raising program series “IPR and
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Software in the XXI Century: Perspectives,
Challenges and Opportunities”
– Sri Lanka (May 2007), Malaysia (February 2008)
– San Jose de Costa Rica (August 2008)
WIPO Development Agenda (2007, ongoing): studies
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and conferences on:
– Free and Open-Source software
Open-
– open systems
– open standards
– public domain
–

18. Conclusion
Software is a powerful tool for economic
*
development, and IPRs plays a major role in
promoting R&D and rewarding software innovators,
whether based on OSS or proprietary models.
OSS is well-established in business and e-Government
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user communities.
Businesses and government procurement authorities
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have options to select suitable software from multiple
sources.
The choice between OSS and commercial software, or
*
mixed platforms, is best based on business needs,
including costs and maintenance.

19. Thank you
www.wipo.int
richard.owens@wipo.int