소프트웨어의 法的 保護

Legal Protection of Software: Recent Development of IT Industry and the Need for Software Patent

Over the past few decades, the software industry has emerged as one of the most innovative sectors of the economy. Intellectual property (IP) laws have had an important impact on the software industry's success. IP laws such as trade secret, copyright and patent law have played a particularly central role in three issues of concern to the software industry-counterfeiting, competitor copying, and interoperability. At times, acts that may facilitate competitor copying and infringe upon IP rights may also be defended on the grounds of promoting IT interoperability. This article contends that the history of the software industry can be divided into at least two phases, each characterized by distinct technologies and market structures, which in turn have influenced the relevance and significance of the available IP regimes. During the first phase, due to software's tight integration with hardware and the IT industry's vertical structure, software developers relied primarily on trade secret protection and contract law to guard their innovations against appropriation by others. In the second phase that emerged in the early 1980s and continues to date, software's separation from hardware and the industry's new horizontal structure resulted in a diverse, heterogeneous IT environment based in large part on mass-market business models. Most developers relied more heavily on copyright than in the past to protect their innovations. The advent of Internet changed the IT environment in a way that each and every device and is connected to each other, forming networks, which requires standardized mechanism in order to transmit data and communicate with each other. Software developers started disclosing essential interfaces and protocols so that independent developers and hardware manufacturers can easily write interoperable programs and hardware device drivers. Recent developments in IP law suggests that patent law might provide a more appropriate legal framework covering copyright's limited ability to shield developers against certain forms of copying such as cloning, similar forms of competitor copying and decompilation. Although there are some criticism of software patents in terms of patent review procedures, the quality or breadth of software patents, there is considerable consensus that societies with robust patent regimes generally experience higher levels of innovation than societies that offer little or no patent protection. In conjunction with other forms of IP protection, software patent protection will enable software developers to protect new and useful software innovations in ways that are consistent with the goals of IT interoperability and transparency.