| Abstract: | Legal context: Software is an anomaly in the traditional sphere of IP, andits problematic nature has been manifest in the confused findingsof courts on both sides of the Atlantic. This article considersthe reasons for the confusion, where things might have beendone better, and how the law could develop considering the realitiesof the industry. Key points: Software protection at present favours the multinational corporations,while the interests of smaller companies and the Free and OpenSource Software community are prejudiced greatly. The currentregime is not fundamentally incompatible with software, however,and as such features of it could and should be retained in thecreation of a sui generis IP right. Practical significance: Much of today's software industry is driven by the efforts ofsmall enterprises and the Free and Open Source Software community.Their interests are not recognized in the current protection-biasedframework, and as a result innovation is being stifled by thethreat of litigation. IP law in this area is preventing thevery thing it is designed to foster—enterprise and innovation. |
