International Law

Directive on Protection for Computer Programs

By Karl-Friedrich Lenz

The 1991 Directive on the legal protection for computer programs has been newly codified as Directive 2009/24 of 23 April 2009. The new Directive is the same as the old text, only incorporating later amendments of the 1991 Directive and adding paragraph numbers to the recitals.

For example, the recital with the new number 7 reads:

Whereas, for the purpose of this Directive, the term ‘computer program` shall include programs in any form, including those which are incorporated into hardware; whereas this term also includes preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage;

This is a far-reaching definition. It will be interesting to note in the context of the referral to the Enlarged Board of Appeal at the European Patent Office, which will lead to a new definition of “computer program” under patent law. There is a long list of amicus curiae briefs.

If the Enlarged Board follows the traditional approach of restricting the exception to patentability, the result will be a definition much narrower than that of copyright law. That would leave a large number of cases where patent protection and copyright protection overlap, which in turn means that copyright protection becomes worthless, since with tens of thousands of computer program patents out there any author of computer programs will be violating many of them, removing his right to reproduce his own computer program.

Full post as published by Lenz Blog on May 10, 2009 (boomark / email).