Title: Open-Source Software and the Demise of Copyright
Abstract: I. COPYRIGHT, SOFTWARE, AND THE CURRENT DEBATE A. Introduction The scope of copyright protection for computer software reflects a variety of economic considerations. The chief goal of copyright law is to provide an economic incentive for creative efforts.(1) The principal tool by which copyright promotes authors' creative efforts is grant of exclusive rights to their works for a limited period of time.(2) Due in part to competition in software market, complexity of computer software, and law's ill preparedness to deal with preceding two factors, the state of copyright law with respect to computer software has been in flux since early 1980's and is still not settled.(3) In particular, law has yet to accurately identify aspects of copyright-protected computer programs, and that failure has precipitated a spirited debate.(4) Participants in debate can generally be classified according to scope of protection they believe copyright affords a computer program's elements.(5) Both academics and industry participants have noted importance of debate over scope of copyright protection for software; in fact, some commentators have stated that its outcome would determine future of international software industry.(6) With emergence of open-source software (OSS), some of debate over copyright protection has taken a new focus. Although OSS depends upon copyright protection for its continued existence, economic incentives of OSS are not traditional economic incentives assumed by copyright law because they do not arise out of a monopoly of copyrighted material. As a result, copyright law plays a diminished role in OSS.(7) Part I of this article examines economic foundation of commercial software industry and its reliance upon copyright law, highlighting current debate concerning appropriate level of software protection for a program's elements. Part II examines OSS and its impact on information industries with particular emphasis on its freedom from market pressures and technical superiority over its proprietary counterparts. This article concludes that although some copyright protection is required to perpetuate open-source movement, OSS' emergence has substantially mooted current debate over appropriate level of protection for a program's elements. B. Introduction to Copyright Law The Copyright Act(8) protects all works of authorship [when they are] fixed in any tangible medium of expression.(9) Copyright protection provides an author limited, exclusive rights over his work,(10) and confers on him certain enumerated privileges(11) that extend to a work's literal and non-literal aspects.(12) The non-literal aspects of copyrighted works that have been afforded protection are the plot outline of a movie, structure, sequence and organization of a computer program, or even `total concept and feel' of a song, a television show, or a greeting card.(13) A copyright owner has ability to reap commercial rewards for his work.(14) The owner's exclusive right to his work includes ability to prevent making of derivative works.(15) A copyright owner can sue maker of an unauthorized derivative work for infringement of original.(16) [I]n order to qualify for a separate copyright as a derivative work ... additional matter injected in a prior work ... must constitute more than a minimal contribution.(17) Generally, contribution to existing, copyrighted work must render derivative work distinguishable in a meaningful manner to avoid infringement.(18) Copyright does not protect ideas, but only author's original expression of those ideas.(19) For example, in seminal case of Baker v. Selden,(20) Supreme Court denied author of a copyrighted book exclusive rights to system of bookkeeping that his text explained. …
Publication Year: 2001
Publication Date: 2001-03-22
Language: en
Type: article
Access and Citation
Cited By Count: 12
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