based on the assumption that new technological directions demand unique forms of protection. Sui generis laws—each unique by definition—fail to rely on or contribute to a body of consistent, developed principles of legal protection for intellectual property. Uncertainty is the result, and business risks are increased. Innovation is stifled because return on investment is jeopardized by unpredictable application of law worldwide. If we were to follow such a policy direction, we might soon have a bewildering array of legal tools that retard advances in applied science and technology, and delay the delivery of new products to market. The public good will be better served if we stick to basics.
By basics I mean that we will be well served by using the existing frameworks for patents, copyrights, trade secrets, and so forth, and by fostering their evolution to accommodate new forms of technology. The basic principles that underlie these forms of protection have proved flexible and served us well since at least the last century. Our reflex should be to expect that the existing, well-tested, basic principles will accommodate new forms of technology in the future, as they have in the past.
Let me illustrate my suggestion by referring to computer software. When software emerged as a separate area of innovation several decades ago, it seemed new and different. We were all uncertain about what form of intellectual property protection should be applied. After reflection, however, the fundamental principles of intellectual property were considered, and it could be seen that from an intellectual property point of view, software was not one thing but several.
It was seen that from a patent perspective, inventive activity could be involved. Thus, if the standard criteria of inventiveness were met, a patent could be granted for certain aspects of software. Similarly, it was seen that from a copyright perspective, creative expression was involved. Thus the standard criteria for copyright were present, and this form of protection could be applied. Indeed, this protection could be uniform from country to country through application of the Berne Convention. It was also seen that for certain kinds of software, particularly customized software, standard criteria for trade secret protection could be found. Broken down into its several component parts, we now see that software can be served by three forms of intellectual property protection, depending on various factors.
I want to conclude my reflection on this trend by stressing simply that when we are faced with new forms of technology there should be a strong preference for adaptation of existing intellectual property systems rather than a flight to exotic new mechanisms. I urge this primarily to achieve global congruence as rapidly as possible when new technology comes into play, chiefly through utilization of the international conventions of Berne and Paris, which have served well in this regard over the last hundred years.