Properly Protecting Code : Solving Copyright and Patent Rights Overlap via Computer Software Suitability in Copyright

Over the past several decades an expansion of coverage has evolved in individual intellectual property rights, especially copyright and patent. This expansion has caused overlap to occur between rights, thus allowing for an inefficient intellectual property regime that permits overreaching protection, ultimately running counter to the bargain agreed to for each individual right. The overlap between copyright and patent has especially proven to be problematic when applied to computer software. A theoretical solution to this overlap is the exclusion of copyright protection to computer software, due to its unsuitability to be considered copyrightable material and the obtuseness when applying traditional “physical” copyright qualification to it. Despite the practical difficulties of implementing this expungement, it is crucial that options such as this be considered in order to better foster innovation, competition, and creativity in this technical area