How Far Have We Come, and Where Do We Go from Here: The Status of Global Computer Software Protection under the TRIPS Agreement

The TRIPS agreement made significant advances over the pre-TRIPS international regime with respect to the protection of computer software. There are at least two significant advances. First, computer software protections have been embedded into the new dispute resolution procedures. Second, both object and source code are protected under the copyright sections of the Agreement. The dispute resolution procedures provide back-end protection (protection after offenses have occurred), while new copyright provisions provide affirmative front-end protection (protection deterring such offenses). However, the Agreement could have, and should have, gone farther to protect the software industry. By not formally deciding on the ability to patent software per se, the TRIPS agreement simply reiterates one of the major shortcomings of the pre-TRIPS international computer software protection regimes. As this article will show, leaving the decision of patentability to the sole discretion of domestic policymakers ensures that consistent global protection of software will be virtually impossible to achieve. To the extent that countries offer the patent protection of software per se, in addition to copyright and dispute resolution legislation, computer software will be well protected by the overlap of the three. However, where patents will not be granted for software per se, computer software will be underprotected. Furthermore, this lack of harmonization will impose additional administrative burdens on patent holders