Legal protection of software—a global view from Japan

Abstract

Abstract—Summary An investigation of legal measures for the protection of software reveals a number of important insights into the scope and nature of copyright. Rather than something unique for legal purposes, software and recorded media is actually familiar information. Hence, it is protectible by regular copyright. Regular copyright has two relatively distinct branches, in published and unpublished works. Despite the notion that copyright covers only mode of expression, it is actually applied to protect certain types of information content. As it is so applied, copyright in unpublished works transferred subject to restrictions on the use and disclosure of their information content is equivalent to trade secrecy in the American sense. The nature and scope of copyright is intrinsic and universal wherever it applies. It provides an ideal basis for a much needed international consensus on legal measures for protecting software program interests. It would be needlessly provocative for the USA to attempt to induce Japan or any other country to adopt trade secrecy in the American sense. Japanese support for a new program right as an alternative to copyright probably arose largely out of a lack of understanding of the scope and nature of copyright, especially in unpublished works. As it is applied, copyright generally is unfair competition law in the American sense. Applying it in that light, rather than as traditional copyright, provides wiser treatment of new phenomena that involve software programs, such as copying the structure and format of software programs.