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Is software copyright becoming unfair competition law?
JULY - A U G U S T
THE C O M P U T E R LAW A N D S E C U R I T Y REPORT
commerce. Goverments should be encouraged to recognise this in the formulation of policies and regulations affecting transborder data flows. • Users should be free in principle to use transmission services for the passage of information without reference to whether it be in the form of data, text image or voice. Users should be free to meet their needs from available national and international basic transmission services unless their technical characteristics dictate otherwise. There should be no requirement for them to define to the network provider the nature of the information transmitted whether it be data, text, image or voice nor should such consideration affect the price of a connection. • Priority should be given to improving the quality of public networks within and among developed and developing countries and to providing infrastructures which encourage widespread access and increasing use. Good basic telecommunications services are fundamentally important for the business and social welfare of a country and they form the basis on which all information technology rests. Governments should be aware of this and should encourage the development and improvement of those services even where there is strong competition for available funds as in the developing
countries. The efficient and effective operation of the basic public networks must be accepted by the network providers as their first responsibility. Public service tariffs set by monpolies or dominant suppliers should be fair to customer and supplier and where possible related to costs. When public service tariffs are set by monopolies or dominant suppliers there is concern amongst users that they should be fair. Competition usually results in prices being related to costs and ideally this should be the basis for public service tariffs, although the accurate allocation of costs may be difficult. Unreasonably high prices inhibit use and are bad for commerce and industry and often come about through a requirement to support loss-making postal services and/or large contributions to central funds. Whilst it may be the right of governments to impose such requirements the logic should be challenged and the facts made known. It is only fair to users that they should be aware of what they are paying for, as in the end they support such costs. At the same time it should be recognised that the development of the basic public network requires significant investment supported by longterm research and development, with amortisation periods considerably longer than normally applied to IT equipment, and that the investors, government or private, will expect an adequate return on the capital invested.
LEGAL PROTECTION OF SOFTWARE A GLOBAL VIEW FROM JAPAN IS SOFTWARE COPYRIGHT UNFAIR COMPETITION LAW?
The personnel of the Copyright Division in Japan's Ministry of Education's Agency for Cultural Affairs are a single exception. That lack of understanding creates uncertainty regarding both what is intellectual property of others that should be respected, on the one hand, and what is intellectual property of a claimant that might be asserted against others, on the other hand, which are opposite sides of the same coin. That uncertainty might underlie the common belief in Japan that one may use freely any information that can be gotten by any means. That lack of understanding even includes an unfamiliarity with the phenomenon of licensing as it is practiced routinely in the U.S.A. However, it well might be that the dissemination by this writer in Japan in late 1986 of the ideas set forth below regarding the true scope of copyright, the real nature of intellectual property in software, and the method of legal analysis by which the significance of that property in specific situations is derived, will produce there not only a readiness for such an international consensus but even more importantly the real ability to benefit from it.
BECOMING
Against the background of deteriorating trade relations between the USA and Japan this article was prepared by the distinguished computer lawyer Roy N. Freed while he was Visiting Scholar at Tokyo University Law Faculty. He has written extensively about computer law since the 1960's and is with the law firm of Brown, Rudnick, Freed and Gesmer of Boston Ma. The article provides insights into Japanese thinking about the nature of copyright protection for software. Legal misunderstanding in Japan The recent frictions both within Japan and internationally over legal protection of software very likely arose more from a lack of adequate understanding in Japan of the scope and significance of copyright than from sinister motives imputed to the Japanese from abroad to grab American technology. This observation, which probably will astonish most readers, is pertinent particularly to people who supply software internationally to or from Japan or who influence American trade policy. That longstanding lack of understanding has become prominent simply because of current efforts to identify legal measures appropriate for protecting interests in software programs, computerized data bases or information files, and works of authorship created by means of computers. Efforts by this writer while in Japan in late 1986 to identify legal measures for software protection that would support a needed international consensus turned up evidence of an amazing widespread lack of that understanding among key actors in Japan. That was especially true of many people who opted a few years ago for the novel program right proposed by the Ministry of International Trade and Industry (MITI) as against regular copyright and who still smart from its rejection.
True legal nature of software In misconceiving the property aspects of software, the Japanese are not unique. Many Americans and others have the same problem, although probably not as seriously because they are more facile in handling legal subject matter and because they have the property interest of trade secrecy in their legal armamentarium. Despite the practice of referring to "software" in the market place everywhere, there is no such thing for legal purposes. Instead, there are two basic manifestations of software that must be recognized for those purposes. They include, first, information usable by people and computers about the steps computers take in processing their so-called input information, which in both cases really "is a human conceptualization for streams of differentiated 10
THE C O M P U T E R LAW AND S E C U R I T Y REPORT
2 CLSR
the like. The latter includes bilateral tax treaties, international copyright conventions, trade agreements, and the like. Reliance on copyright for software protection requires no major re-adjustment of those structures. It merely entails an appreciation of its full scope set forth above in the light of the availability of computers. In contrast, introduction of a novel form of legal protection, such as the program right proposed by MITI, requires substantial such re-adjustment of various fields of law because it is not provided for in them. The need for that re-adjustment should not be overlooked and it should not have to be undertaken unless the new legal measure is really needed. A new legal measure is not required because copyright richly provides the means for serving the legitimate interests of software program suppliers compatibly with advancing public policy. In fact, the vitality of copyright, especially as it is revealed by applying it to software program subject matter, provides a good model for most laws that apply to evolving technology. That vitality has fostered both the expansion of copyright coverage and the amelioration of possible rigors of published copyright against copying, to serve social needs.
electrochemical or electronic pulses. Secondly, those manifestations include things that are records of that information regarding those steps, which again are really storage means for generating physical pulses to human and computer information processors. Some of those records are usable by people through the use of their senses of sight, hearing, and touch and most of them are said to be legible. Others are uniquely usable by computers through the use of their equivalent particular input sensing devices. Despite their association with arcane computer-communications technology, both that information and those recorded items are entirely familiar phenomena whose status as property is achieved by means of existing copyright laws everywhere. That fact should not be astonishing because, in essence, computers do the same information processing people have been doing all along. Computers are significant legally largely because they are the first machines that process information, or more precisely pulses for what people consider to be information, automatically in accordance with programs.
Copyright inherently covers materials for programs In fact, because of that elemental functional identity between people and computers, copyright inherently covers works of authorship that are unique to computers, such as magnetic tapes and ROMs and laser-sensitive disks. That is so because both traditional printed works and newer computer media perform the same physical function of generating signals to their respective human and computer information processors, through input receiving means, for processing as streams of electrochemical or electromagnetic pulses, respectively. It should be recognized that once a country has adopted the concept of copyright, many elements of that property interest arise automatically, especially its coverage. There is an essential universality of the nature and scope of copyright. For example, the occasionally encountered notion that copyright is related only to works created and usable by people has become archaic with the advent of computers. The Japanese code provision that works of authorship must reflect thoughts and feelings of people, the American idea that copyright is a reward for contributing knowledge to people, and the Berne Convention's broad scope of moral rights merely indicate the relatively low level of understanding, before computers, of the physical activity of information processing by people. Those items are essentially reflective of earlier, primitive ideas rather than prescriptive of the current scope of copyright, because they were not adopted as policy factors in light of the existence of computers. Despite those items, courts in Japan, in the U.S.A., and elsewhere have ruled realistically that computer media, including centipede-like plug-in ROMs, are copyrightable works. Similarly, people are recognizing that the moral right to bar modification of copyrighted works does not give control over persons that want to modify for their own use works for software programs they possess rightfully. Likewise, for a long time, works of authorship have been created routinely by legal entities that are not people and hence are not entitled to the full scope of moral rights specified in the Berne Convention. Legal scholars and others should accept those developments and stop trying to turn back the clock, as some are doing in Japan and the U.S.A. and probably elsewhere.
Copyright accommodates evolving technological needs The expansiveness of copyright progressed from covering only straight or dead copying to barring the creation of translations. Later, it was recognized to protect the plot and character of published novels. With the last two steps, copyright ceased applying only to mode of expression, despite the general notion to that effect, and started protecting certain types of information content. Currently, it also is covering a wide variety of new types of works that are not usable directly by people, such as magnetic media for computers. The latest step is the extension of copyright in the U.S.A. to the structure and format of software programs, presumably those whose works are published. Although that seems to be a logical extension within a copyright context of the protection of the plot and characters of novels, as pointed out below it might not be truly compatible with public policy because of the different nature of the software program subject matter and hence require a different legal frame of reference, specifically unfair competition law. A number of ameliorative aspects of published copyright also have arisen, largely through judicial administration. For example, courts introduced the fair use doctrine to permit otherwise infringing copying for socially desirable purposes that does not harm the copyright owner's imputed financial interest unfairly. Likewise, it is held that copyright does not cover published works that set forth the only way to describe a process or the like, in order to avoid improper extension of the copyright monopoly. That facet was in issue of the key Apple Computer v. Franklin Computer case in the U.S.A., which involved ROMs for the Apple operating system. That principle undoubtedly underlies the exclusion of algorithms from copyright in the recent Japanese amendment, which seems to require clarification of whether it applies only to single algorithms rather than aggregations of them. That exclusionary principle, often characterized as a merger of the mode of expression with the information content, has a significant flavor of unfair competition law.
Copyright really is unfair competition law
Copyright is part of existing legal structures
Copyright can be harnessed most effectively, especially in respecting public policy, when its real nature as well as its scope is recognized. As indicated by the way it is applied, particularly to cover certain types of information in published and unpublished works, copyright really has become unfair
Copyright is significant not only for itself but also because it is a key element of existing domestic and international legal structures. The former includes legal rules on conducting many types of transactions, taxation, liability, antitrust, and 11
JULY - A U G U S T
THE C O M P U T E R LAW A N D S E C U R I T Y R E P O R t
competition law where it is treated imaginatively. The U.S.A. provides a good example. However, discovering the real treatment of copyright requires sophisticated probing both behind the facade of the abstract generalizations regarding it and, because of the belated appreciation of unpublished copyright, in ostensible other fields of law, particularly trade secrecy and unfair competition. As revealed above, copyright itself, particularly in published works, is applied to cover certain information content of works of authorship. Persistent reference to the expression-idea dichotomy (ie the distinction between protecting expression as opposed to the underlying ideas within the expression Ed.) and characterization of information content as mode of expression in order to preserve the professed legal structure has become a sham. It entails needless mental contortions and should be abandoned in favor of intellectual honesty. The true nature of unpublished copyright, especially as it covers much information content of works of authorship, is masked substantially by treatment of its subject matter under the rubric of trade secrecy. In practice, trade secrecy ordinarily is considered to protect information from unauthorized use. However, where it applies to recorded information, the works involved are automatically unpublished copyrighted works. The trade secret aspect actually is superfluous in that predominant situation. Copyright in unpublished works should be identified as the true legal interest, preferably rather than trade secrecy but at least in addition to it. Furthermore, trade secrecy as applied in the U.S.A. and many other countries arose out of, and really is, a facet of unfair competition law. Trade secrecy arose in the U.S.A. largely because its Federal copyright law did not cover unpublished works until less than a decade ago and unpublished copyright failed to mature in its own right under the State common law system. An equivalent failure occurred in other countries. It is advisable for public policy purposes to cut through the confusing multiplicity by acknowledging that copyright in both its branches has become in practice unfair competition law. Traditional copyright is tainted with the formalistic expressionidea dichotomy, which suggests a mechanistic test separate from public policy considerations to determine its applicability to new types of situations, such as the plot and characters of novels and the structure and format of software programs. In contrast, unfair competition law has a prominent public policy component that is needed increasingly as pressure necessarily grows to expand copyright to cover computerrelated circumstances.
is especially necessary in Japan. where professing uniqueness seems to be an obsession. Those activities should include the production of informative, well reasoned articles geared to the various different audiences and continuing professional education programs. That is particularly necessary in Japan where legal scholars have a major role in the application of legal rules because of the unwillingness of lawyers and others who apply those rules to make professional judgements independently in handling specific legal questions and the paucity of judicial opinions that ordinarily provide guidance to the less self-reliant professionals and also reflect a ferment of ideas. Third, the inherent richness of copyright should be exploited by stating its scope as generally as possible in codes and statutes. People everywhere should develop skill in interpreting that body of law in light of its public purpose and stop seeking amendments to cover ostensibly new situations, such as the advent of ROMs. Reliance on the amending process introduces delay, undermines professional initiative, and often introduces rigidity and outright error: witness the result of new section 117 of the U.S. Copyright Act of 1976. In that regard, Professor Teruo Doi of the Waseda University Law Faculty in Tokyo suggested to this writer that ideally a copyright code should primarily define the basic terms "work of authorship" and "reproduction." The relatively easy accommodation of computer media, including the very novel ROMs, is a good example of the suitability of the dynamic interpretative process recommended. That accommodation probably reflects an instinctive recognition of the newly apparent fact that works of authorship perform the entirely physical function of generating signals to human and machine information processors for processing. That fact might provide the basis for the suggested broad definition of "work of authorship," although taking that approach would involve a radical departure from the traditional way of discussing copyright. Fourth, the current thrust of copyright as unfair competition law in the American sense should be acknowledged. Doing so will make it possible to apply the law to new circumstances more compatibly with underlying public policy as it evolves. For example, from a copyright perspective, extending copyright to the structure and format of software programs appears to be a logical progression from the coverage of the plot and characters of novels. In contrast, from an unfair competition perspective, it would be appropriate to determine if those two phenomena are truly equivalent in light of the probably very different subject matters and their use. Copyright is believed to have become such unfair competition law because it has long ceased to apply only to mode of expression. It has really protected information content of various types ever since translations of published works were barred. The plot and characters of novels are actually information, as is the structure and format of software programs. All information content of unpublished works subject to restrictions is covered. It is timely to unmask the expression-idea dichotomy as a mere shibboleth that diverts attention from the true public policy factors that must be respected.
Action for an international consensus
The foregoing suggests a number of major conclusions that are pertinent to people who apply or are affected by legal rules and whose recognition can facilitate smooth international trade in software programs. First, copyright in both its published and unpublished branches, as they are identified specifically in their full scopes, is the ideal legal measure for protecting property interests in software programs and the only one that all countries that respect intellectual property should be able to accept readily in an international consensus. Second, all countries that provide copyright should make the full scope of unpublished copyright truly effective. That requires professional educational activities tailored to their respective cultures and historical backgrounds. Those activities should stress similarities of legal rules among nations and hence diverge from traditional comparative law studies that focus on ostensible differences. That approach
Roy N. Freed
12
THE C O M P U T E R LAW A N D S E C U R I T Y REPORT
commerce. Goverments should be encouraged to recognise this in the formulation of policies and regulations affecting transborder data flows. • Users should be free in principle to use transmission services for the passage of information without reference to whether it be in the form of data, text image or voice. Users should be free to meet their needs from available national and international basic transmission services unless their technical characteristics dictate otherwise. There should be no requirement for them to define to the network provider the nature of the information transmitted whether it be data, text, image or voice nor should such consideration affect the price of a connection. • Priority should be given to improving the quality of public networks within and among developed and developing countries and to providing infrastructures which encourage widespread access and increasing use. Good basic telecommunications services are fundamentally important for the business and social welfare of a country and they form the basis on which all information technology rests. Governments should be aware of this and should encourage the development and improvement of those services even where there is strong competition for available funds as in the developing
countries. The efficient and effective operation of the basic public networks must be accepted by the network providers as their first responsibility. Public service tariffs set by monpolies or dominant suppliers should be fair to customer and supplier and where possible related to costs. When public service tariffs are set by monopolies or dominant suppliers there is concern amongst users that they should be fair. Competition usually results in prices being related to costs and ideally this should be the basis for public service tariffs, although the accurate allocation of costs may be difficult. Unreasonably high prices inhibit use and are bad for commerce and industry and often come about through a requirement to support loss-making postal services and/or large contributions to central funds. Whilst it may be the right of governments to impose such requirements the logic should be challenged and the facts made known. It is only fair to users that they should be aware of what they are paying for, as in the end they support such costs. At the same time it should be recognised that the development of the basic public network requires significant investment supported by longterm research and development, with amortisation periods considerably longer than normally applied to IT equipment, and that the investors, government or private, will expect an adequate return on the capital invested.
LEGAL PROTECTION OF SOFTWARE A GLOBAL VIEW FROM JAPAN IS SOFTWARE COPYRIGHT UNFAIR COMPETITION LAW?
The personnel of the Copyright Division in Japan's Ministry of Education's Agency for Cultural Affairs are a single exception. That lack of understanding creates uncertainty regarding both what is intellectual property of others that should be respected, on the one hand, and what is intellectual property of a claimant that might be asserted against others, on the other hand, which are opposite sides of the same coin. That uncertainty might underlie the common belief in Japan that one may use freely any information that can be gotten by any means. That lack of understanding even includes an unfamiliarity with the phenomenon of licensing as it is practiced routinely in the U.S.A. However, it well might be that the dissemination by this writer in Japan in late 1986 of the ideas set forth below regarding the true scope of copyright, the real nature of intellectual property in software, and the method of legal analysis by which the significance of that property in specific situations is derived, will produce there not only a readiness for such an international consensus but even more importantly the real ability to benefit from it.
BECOMING
Against the background of deteriorating trade relations between the USA and Japan this article was prepared by the distinguished computer lawyer Roy N. Freed while he was Visiting Scholar at Tokyo University Law Faculty. He has written extensively about computer law since the 1960's and is with the law firm of Brown, Rudnick, Freed and Gesmer of Boston Ma. The article provides insights into Japanese thinking about the nature of copyright protection for software. Legal misunderstanding in Japan The recent frictions both within Japan and internationally over legal protection of software very likely arose more from a lack of adequate understanding in Japan of the scope and significance of copyright than from sinister motives imputed to the Japanese from abroad to grab American technology. This observation, which probably will astonish most readers, is pertinent particularly to people who supply software internationally to or from Japan or who influence American trade policy. That longstanding lack of understanding has become prominent simply because of current efforts to identify legal measures appropriate for protecting interests in software programs, computerized data bases or information files, and works of authorship created by means of computers. Efforts by this writer while in Japan in late 1986 to identify legal measures for software protection that would support a needed international consensus turned up evidence of an amazing widespread lack of that understanding among key actors in Japan. That was especially true of many people who opted a few years ago for the novel program right proposed by the Ministry of International Trade and Industry (MITI) as against regular copyright and who still smart from its rejection.
True legal nature of software In misconceiving the property aspects of software, the Japanese are not unique. Many Americans and others have the same problem, although probably not as seriously because they are more facile in handling legal subject matter and because they have the property interest of trade secrecy in their legal armamentarium. Despite the practice of referring to "software" in the market place everywhere, there is no such thing for legal purposes. Instead, there are two basic manifestations of software that must be recognized for those purposes. They include, first, information usable by people and computers about the steps computers take in processing their so-called input information, which in both cases really "is a human conceptualization for streams of differentiated 10
THE C O M P U T E R LAW AND S E C U R I T Y REPORT
2 CLSR
the like. The latter includes bilateral tax treaties, international copyright conventions, trade agreements, and the like. Reliance on copyright for software protection requires no major re-adjustment of those structures. It merely entails an appreciation of its full scope set forth above in the light of the availability of computers. In contrast, introduction of a novel form of legal protection, such as the program right proposed by MITI, requires substantial such re-adjustment of various fields of law because it is not provided for in them. The need for that re-adjustment should not be overlooked and it should not have to be undertaken unless the new legal measure is really needed. A new legal measure is not required because copyright richly provides the means for serving the legitimate interests of software program suppliers compatibly with advancing public policy. In fact, the vitality of copyright, especially as it is revealed by applying it to software program subject matter, provides a good model for most laws that apply to evolving technology. That vitality has fostered both the expansion of copyright coverage and the amelioration of possible rigors of published copyright against copying, to serve social needs.
electrochemical or electronic pulses. Secondly, those manifestations include things that are records of that information regarding those steps, which again are really storage means for generating physical pulses to human and computer information processors. Some of those records are usable by people through the use of their senses of sight, hearing, and touch and most of them are said to be legible. Others are uniquely usable by computers through the use of their equivalent particular input sensing devices. Despite their association with arcane computer-communications technology, both that information and those recorded items are entirely familiar phenomena whose status as property is achieved by means of existing copyright laws everywhere. That fact should not be astonishing because, in essence, computers do the same information processing people have been doing all along. Computers are significant legally largely because they are the first machines that process information, or more precisely pulses for what people consider to be information, automatically in accordance with programs.
Copyright inherently covers materials for programs In fact, because of that elemental functional identity between people and computers, copyright inherently covers works of authorship that are unique to computers, such as magnetic tapes and ROMs and laser-sensitive disks. That is so because both traditional printed works and newer computer media perform the same physical function of generating signals to their respective human and computer information processors, through input receiving means, for processing as streams of electrochemical or electromagnetic pulses, respectively. It should be recognized that once a country has adopted the concept of copyright, many elements of that property interest arise automatically, especially its coverage. There is an essential universality of the nature and scope of copyright. For example, the occasionally encountered notion that copyright is related only to works created and usable by people has become archaic with the advent of computers. The Japanese code provision that works of authorship must reflect thoughts and feelings of people, the American idea that copyright is a reward for contributing knowledge to people, and the Berne Convention's broad scope of moral rights merely indicate the relatively low level of understanding, before computers, of the physical activity of information processing by people. Those items are essentially reflective of earlier, primitive ideas rather than prescriptive of the current scope of copyright, because they were not adopted as policy factors in light of the existence of computers. Despite those items, courts in Japan, in the U.S.A., and elsewhere have ruled realistically that computer media, including centipede-like plug-in ROMs, are copyrightable works. Similarly, people are recognizing that the moral right to bar modification of copyrighted works does not give control over persons that want to modify for their own use works for software programs they possess rightfully. Likewise, for a long time, works of authorship have been created routinely by legal entities that are not people and hence are not entitled to the full scope of moral rights specified in the Berne Convention. Legal scholars and others should accept those developments and stop trying to turn back the clock, as some are doing in Japan and the U.S.A. and probably elsewhere.
Copyright accommodates evolving technological needs The expansiveness of copyright progressed from covering only straight or dead copying to barring the creation of translations. Later, it was recognized to protect the plot and character of published novels. With the last two steps, copyright ceased applying only to mode of expression, despite the general notion to that effect, and started protecting certain types of information content. Currently, it also is covering a wide variety of new types of works that are not usable directly by people, such as magnetic media for computers. The latest step is the extension of copyright in the U.S.A. to the structure and format of software programs, presumably those whose works are published. Although that seems to be a logical extension within a copyright context of the protection of the plot and characters of novels, as pointed out below it might not be truly compatible with public policy because of the different nature of the software program subject matter and hence require a different legal frame of reference, specifically unfair competition law. A number of ameliorative aspects of published copyright also have arisen, largely through judicial administration. For example, courts introduced the fair use doctrine to permit otherwise infringing copying for socially desirable purposes that does not harm the copyright owner's imputed financial interest unfairly. Likewise, it is held that copyright does not cover published works that set forth the only way to describe a process or the like, in order to avoid improper extension of the copyright monopoly. That facet was in issue of the key Apple Computer v. Franklin Computer case in the U.S.A., which involved ROMs for the Apple operating system. That principle undoubtedly underlies the exclusion of algorithms from copyright in the recent Japanese amendment, which seems to require clarification of whether it applies only to single algorithms rather than aggregations of them. That exclusionary principle, often characterized as a merger of the mode of expression with the information content, has a significant flavor of unfair competition law.
Copyright really is unfair competition law
Copyright is part of existing legal structures
Copyright can be harnessed most effectively, especially in respecting public policy, when its real nature as well as its scope is recognized. As indicated by the way it is applied, particularly to cover certain types of information in published and unpublished works, copyright really has become unfair
Copyright is significant not only for itself but also because it is a key element of existing domestic and international legal structures. The former includes legal rules on conducting many types of transactions, taxation, liability, antitrust, and 11
JULY - A U G U S T
THE C O M P U T E R LAW A N D S E C U R I T Y R E P O R t
competition law where it is treated imaginatively. The U.S.A. provides a good example. However, discovering the real treatment of copyright requires sophisticated probing both behind the facade of the abstract generalizations regarding it and, because of the belated appreciation of unpublished copyright, in ostensible other fields of law, particularly trade secrecy and unfair competition. As revealed above, copyright itself, particularly in published works, is applied to cover certain information content of works of authorship. Persistent reference to the expression-idea dichotomy (ie the distinction between protecting expression as opposed to the underlying ideas within the expression Ed.) and characterization of information content as mode of expression in order to preserve the professed legal structure has become a sham. It entails needless mental contortions and should be abandoned in favor of intellectual honesty. The true nature of unpublished copyright, especially as it covers much information content of works of authorship, is masked substantially by treatment of its subject matter under the rubric of trade secrecy. In practice, trade secrecy ordinarily is considered to protect information from unauthorized use. However, where it applies to recorded information, the works involved are automatically unpublished copyrighted works. The trade secret aspect actually is superfluous in that predominant situation. Copyright in unpublished works should be identified as the true legal interest, preferably rather than trade secrecy but at least in addition to it. Furthermore, trade secrecy as applied in the U.S.A. and many other countries arose out of, and really is, a facet of unfair competition law. Trade secrecy arose in the U.S.A. largely because its Federal copyright law did not cover unpublished works until less than a decade ago and unpublished copyright failed to mature in its own right under the State common law system. An equivalent failure occurred in other countries. It is advisable for public policy purposes to cut through the confusing multiplicity by acknowledging that copyright in both its branches has become in practice unfair competition law. Traditional copyright is tainted with the formalistic expressionidea dichotomy, which suggests a mechanistic test separate from public policy considerations to determine its applicability to new types of situations, such as the plot and characters of novels and the structure and format of software programs. In contrast, unfair competition law has a prominent public policy component that is needed increasingly as pressure necessarily grows to expand copyright to cover computerrelated circumstances.
is especially necessary in Japan. where professing uniqueness seems to be an obsession. Those activities should include the production of informative, well reasoned articles geared to the various different audiences and continuing professional education programs. That is particularly necessary in Japan where legal scholars have a major role in the application of legal rules because of the unwillingness of lawyers and others who apply those rules to make professional judgements independently in handling specific legal questions and the paucity of judicial opinions that ordinarily provide guidance to the less self-reliant professionals and also reflect a ferment of ideas. Third, the inherent richness of copyright should be exploited by stating its scope as generally as possible in codes and statutes. People everywhere should develop skill in interpreting that body of law in light of its public purpose and stop seeking amendments to cover ostensibly new situations, such as the advent of ROMs. Reliance on the amending process introduces delay, undermines professional initiative, and often introduces rigidity and outright error: witness the result of new section 117 of the U.S. Copyright Act of 1976. In that regard, Professor Teruo Doi of the Waseda University Law Faculty in Tokyo suggested to this writer that ideally a copyright code should primarily define the basic terms "work of authorship" and "reproduction." The relatively easy accommodation of computer media, including the very novel ROMs, is a good example of the suitability of the dynamic interpretative process recommended. That accommodation probably reflects an instinctive recognition of the newly apparent fact that works of authorship perform the entirely physical function of generating signals to human and machine information processors for processing. That fact might provide the basis for the suggested broad definition of "work of authorship," although taking that approach would involve a radical departure from the traditional way of discussing copyright. Fourth, the current thrust of copyright as unfair competition law in the American sense should be acknowledged. Doing so will make it possible to apply the law to new circumstances more compatibly with underlying public policy as it evolves. For example, from a copyright perspective, extending copyright to the structure and format of software programs appears to be a logical progression from the coverage of the plot and characters of novels. In contrast, from an unfair competition perspective, it would be appropriate to determine if those two phenomena are truly equivalent in light of the probably very different subject matters and their use. Copyright is believed to have become such unfair competition law because it has long ceased to apply only to mode of expression. It has really protected information content of various types ever since translations of published works were barred. The plot and characters of novels are actually information, as is the structure and format of software programs. All information content of unpublished works subject to restrictions is covered. It is timely to unmask the expression-idea dichotomy as a mere shibboleth that diverts attention from the true public policy factors that must be respected.
Action for an international consensus
The foregoing suggests a number of major conclusions that are pertinent to people who apply or are affected by legal rules and whose recognition can facilitate smooth international trade in software programs. First, copyright in both its published and unpublished branches, as they are identified specifically in their full scopes, is the ideal legal measure for protecting property interests in software programs and the only one that all countries that respect intellectual property should be able to accept readily in an international consensus. Second, all countries that provide copyright should make the full scope of unpublished copyright truly effective. That requires professional educational activities tailored to their respective cultures and historical backgrounds. Those activities should stress similarities of legal rules among nations and hence diverge from traditional comparative law studies that focus on ostensible differences. That approach
Roy N. Freed
12