Copyleft, Copytheft - Copyright? The regulation of intellectual property rights in the field of software development in the USA and EU
Az.: 10.07.1.104- Fritz-Thyssen-Stiftung, 2007-2009
Both in the United States and the European Union, the intellectual property rights regulation in information and communication technologies is strongly disputed. Conflicts arise particularly with regard to the application of patent policy instruments for computer programs. In the US, software patents are common practice, inducing a predominantly private good perspective on IT innovations. In the EU, there is a fierce debate, if and to which degree software programs may also be perceived as a public good. As yet, patents for “software as such” (Art. 52 EPC) are not available in the EU, and source code is mainly protected by copyright law, which allows much room for manoeuvre for a multiplicity of economic and/or altruistic distribution models.
Both regulatory approaches are exposed to serious disadvantages. In the US, critical observers argue that an overbroad protection leads to a rather strategic use of patents in an incremental innovation process, which may discourage further research and development. In the EU, however, the persisting vagueness implies legal uncertainties, which may put larger R&D investments at risk. Moreover, large IT corporations essentially from the US are using the loopholes in the legislation to achieve patent protection in the EU. Their entitlements tend to endanger the products of European small and medium enterprises, which usually rely on copyright protection for their inventions.
During the course of our project, we plan to reveal the causal mechanisms for the persisting divergences between the US and the EU regulatory paths. In the search for potential explanations, we draw on the comparative politics and policy literature. Diverging legal traditions, varying foreign trade aspirations, dissimilar actors’ constellations, party differences and institutional differences in the political decision-making process will be taken into consideration in order to explain the regulatory varieties in the intellectual property regulation of one of the most strategic economic sectors.