International Infringement of Software as Intellectual Property

Pages20-28
DOIhttps://doi.org/10.1108/02635579310043930
Publication Date01 Aug 1993
AuthorLaurence Barton,Yogesh Malhotra
20 INDUSTRIAL MANAGEMENT &
DATA SYSTEMS
93,8
International
Infringement of
Software as
Intellectual
Property
Laurence Barton and Yogesh Malhotra
Industrial Management & Data Systems,
Vol.
93
No.
8,
1993,
pp. 20-28
© MCB University Press Limited, 0263-5577
Today, a number of software originators seek
both copyright and patent protection for their
products.
Over the past quarter of a century, the importance of
intellectual property in our society has been transformed
beyond one's imagination. For centuries, intellectual
property largely consisted of the printed word, with
developed countries seeking
to
share such resources with
emerging economies as part of their broader geopolitical
mission. Increasingly, however, intellectual property has
become a privileged good, one which is licensed and
protected by a host of international, domestic and local
laws.
Today, the thoughts, secrets, symbols and
expression of ideas are both intangible and incorporeal
[1].
Some analysts have suggested that intellectual
property is the single most valuable corporate asset, and
also the one most vulnerable to theft[2].
This article discusses the legal and ethical considerations
of software as intellectual property and analyses several
notable cases
of reported infringement
by
foreign
entities.
The article concludes with suggestions on how software
and related products can be protected in a global
marketplace which appears increasingly unable to curb
violations of
law.
A Burgeoning, Susceptible Industry
The
US
Government estimates that the theft of patents,
copyrights, and other forms of intellectual property by
international competitors costs American companies
over
$60
billion per
year[3].
As much as one-quarter of all
infringements are attributable to software infringement,
including codes, programs, user manuals, disks and
associated products[4].
In 1990, the total world market for software (including
operating systems software) was
$43
billion,
with non-US
sales accounting for 58 per cent of the global market[5].
That same year, worldwide losses due to software
copyright infringements
alone were
estimated at between
$10
and
$12
billion.
How Ideas and Products Are Protected
Traditionally, ownership of intellectual property has been
protected through the use of
patents,
copyrights or trade
secrets. In the United States and some other Western
nations,
patents (detailed descriptions of a unique design)
and copyrights (original music, book, play, software and
related creations) are protected by Federal law. Trade
secrets
(any
formula,
device,
or compilation which
gives a
firm proprietary advantage over its competitors) are
protected by state laws[6]. Because of the absence of
national uniform trade secrets laws, trade secrets are
difficult to enforce across the state boundaries and hence
pursued less often than patents or copyrights[7]. It is
difficult, if not impossible, for a corporation to enforce
domestic trade secret laws abroad.
Should Software Be Patented or Copyrighted?
As a legislative body, the US Congress had traditionally
viewed software as a product which should be
copyrighted since the mid
1960s;
beginning in the 1980s,
however, the originators of software argued that their
ideas were more than a publishable idea, and patents
were issued to protect the codes and systems inherent in
programs[8].
Today a number of software companies
seek both copyright and patent protection for their
products as a means of "double protection" against
potential infringement. The reasons for this management
strategy merit some examination.
Copyrights are inexpensive and comparatively easy to
obtain. A copyright provides an exclusive right to
reproduce, revise, distribute, display, or sell published

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