Ethical Issues in Software Patent Law: A Comparison Between the US and UK

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Ethical Issues in Software Patent Law: As Seen in Comparison Between the US and UK

1. Introduction

Though it is often overlooked today in favor of its counterpart digital music protection, software content protection is an extremely serious issue, and many contend that it has the potential to stunt the growth of technology if it is mishandled. The debate concerns software piracy (often simply using a program you didn’t actually pay for), and the proper legal protection that should apply to such software programs. Due to space constraints, I intend to confine our discussion here to an overview of the software patent and copyright issues in the United States and the UK – two of the world’s most advanced countries with widespread software development and use, and therefore great potential for misuse. And as no treatment of this issue can be complete without a look at its ethical ramifications, I will finally propose a solution to the software protection problem, and justify it with ethical as well as pragmatic motivations.

2. Systems Today

There are two primary legal means of protecting one’s software today: copyrights and patents (trade secrets are really a separate category, simply involving keeping your code secret, and provide no real legal protection). The difference between copyrights and patents is that copyrights (traditionally applicable to printed matter and documents) apply automatically but contain limited protection, while patents (applied to unique business processes, etc.) give extensive legal protection but must be granted. Copyrights have long been the only accepted method of protection of software, which was viewed as more like a printed document than a business process; the thinking of many was (and still is!) that,

Patents cover unique processes and functions, but since virtually all software is derivative, patent protection seems inappropriate for software programs. Copyright protection may be more suitable since it does distinguish between ideas and their expression. However, the extent and scope of that protection is unclear…1

What this means is that copyrights can be got around (at least theoretically, rewriting a program in a different way to do exactly the same thing would not violate a copyright on the original program); and while patents are much more restrictive, it is unclear when exactly a patent on a piece of software is justified, resulting in an opportunity for abuse by patent applicants. To get a more substantive picture of the state of software protection today, we will take a closer look at relevant law in the United States, and compare it to the protection currently offered in the UK.

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