Revisiting the Manifesto and Rolling Back Computer Software Copyrights

Abstract

During the 1990s, courts and legislatures worldwide extended copyright protection to software code as a form of literary work. At the time this was understandable given the perceived need for legal protection to promote innovation in a fledgling industry in the wake of the personal computer revolution. However, many criticized this approach as paradoxically contributing to both over-protection and under-protection in the computer software industry. The ensuing decade has shown these criticisms to have been well-founded, both due to concerns that were apparent at the time, and now to more recent developments in programming methodology and digital copyright law. This article suggests that there is today a pressing need to revisit the question of copyright protection for computer software with a view to abolishing such protection. Factors that contribute to this suggestion include: (a) important developments in programming methodology in recent years including object-oriented approaches to programming; (b) the advent of effective contractual and digital rights management (DRM) measures to protect computer code; and, (c) the impact of the Digital Millennium Copyright Act (DMCA) on digital copyright law and practice. This article suggests that copyright protection for software code is no longer necessary in the 21st century and potentially chills innovation. It should therefore be discontinued. Other more appropriate legal and technological protections are now available for software code outside the copyright context.