Background

Intellectual property are the ideas or information that comes from the person’s mind. Being
intangible in nature Intellectual property needs to be protected in order to incentivize investment
in creative and innovation activities. Over the several centuries Intellectual property has
developed laws that carefully balance competing interest of both commercial marketplace and
minimize interference with free flows of ideas. The subject matter of protection in intellectual
property has expanded and has erased the clear delineation between patent, copyright and
trademark law. It has caused overprotection of intellectual property law in the form of overlaps
that allows multiple bodies if intellectual property law simultaneously protect the same subject
matter.
Issue: Overlapping issues in protecting Intellectual Property
Rule of Law:
Copyright law is the extension of property rights related to artistic and literary works including
book, music and work of art. It does not protect any idea, procedure, process, and system,
method of operation, concept, principle or discovery. Functional copyright aspect of copyrighted
work as well as ideas and information are not protected by copyright law (Rodau, 2011p. 62)
Copyright was originally subject to printed material protection. It was historically oriented in
contrast to patent law towards protecting primarily aesthetic work rather than primarily
functional works. Today the subject matter of copyright law has expanded beyond the writing.
The scope and definition of writing has evolved and includes the subject matter that are not
limited to aesthetic works. Today computer software, building designs, three dimensional
commercial products such as jewelry, directories, compilations of facts, financial reports,
photographs, sound recordings and the bar examinations all are subject matter within the domain
of copyright law (Rodau, 2011p. 63)

Application of Law
Commercial products like computer software are uniquely challenging as it does not fit the
governing law paradigm. Like literary work which fits copyright law, software is “expressed” in
form of alphanumeric symbols. These source code are written by one or more programmer
unlike literary work which is generally written by single person. As like poem or an essay
however software also has functional characteristics i.e. the symbols expressing its source code
are translated before or during execution of the program into a useable form that performs work
on a computer. It’s partly functional nature gives software in operation the character of machine
system or process ordinarily the subject matter of patent law not copyright (Armstrong, 2018
p.132)
Moreover patent and copyright distinction are not only semantic but also different in term of the
different protections to author and invention. Copyright law defines six specific uses of protected
works that infringe if conducted without authorization of the copyright holder and adds
numerous exceptions that are considered noninfringing whereas patent law categorically forbids
anyone to make offer or sell any patented inventions. The existence of patent or copyright
depends on different preconditions for each other form of protection , the time of protection and
with immaterial exception what is copyrightable generally not patentable and vice versa. So for
computer system/software to be protected under copyright or patent we must have a look into
whether they include some aspect of both form simultaneously or not (Armstrong, 2018 p.133-
134). And lastly the decision whether to patent or not for computer programs/software carries
another risk. Creator can opt for copyright protection to patent as copyright protection is cheaper,
easier to obtain and enjoys a longer life (Burgunder, 2011).
Conclusion
Computer products/programs/systems Sui generis type of copyright subject matter even though
they fail to be within classification of literary works. Copyright protects them from verbatim
copying, namely, electronic representations of program code and leaves other aspects of program
technology to develop under patent (Karjala, 2016)
References
Armstrong, T. (2018). Symbols, Systems, and Software as Intellectual Property: Time for
CONTU, Part II?. Michigan Telecommunication And Technology Law Review, 24(2), 132-134.
Retrieved from https://repository.law.umich.edu/cgi/viewcontent.cgi?
article=1237&context=mttlr
Karjala, D. (2016). Oracle v. Google and the Scope of a Computer Program Copyright. Journal
Of Intellectual Property Law, 24(1), 7. Retrieved from
https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1399&context=jipl
Rodau, A. (2011). The problem with intellectual property rights. Yale Journal Of Law And
Technology, 13(1), 62-64. Retrieved from
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1064&context=yjolt

Burgunder, L. (2011). Legal aspects of managing technology (5th ed., p. 161). South-Western Cengage

Learning.