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EXISTING INTELLECTUAL PROPERTY PARADIGMS

One of the major issues is whether existing intellectual property right (IPR) paradigms, such as patent law and copyright law, can accommodate the new technologies. There are advantages to using existing legal frameworks to protect new technologies. The copyright and patent laws encompass an expansive and flexible subject matter and a historical body of principles and precedents. In the past, they have enabled the courts to meet the challenges of new technology by applying traditional principles without the need for repeated legislative action. Moreover, there are existing international treaties in both the patent and the copyright areas that, with modification, could be used to secure international protection for technologies.

The new technologies that pose the most troublesome issues for the intellectual property system are those that require protection but that do not fit easily within the existing intellectual property paradigms. For example, developers of computer programs and semiconductor chips, two of the most economically valuable modern technologies, have a great need for intellectual property protection because their efforts require considerable skill and creativity, but the results of their efforts can be appropriated easily once the product is marketed. It has been argued, however, that software and chips are generally too "functional" to fit in the copyright paradigm, as traditionally defined, and not "nonobvious" enough to be patentable. Similarly, incremental innovations in many technologies may be of critical economic importance, but they may not meet the requirements of intellectual property protection within existing paradigms.

Because of historical experience, many observers see it as natural for copyright law and patent law to expand beyond their traditional concepts to provide protection for the new technologies. Other observers, however, are concerned that there are limits beyond which the existing paradigms cannot be stretched without distorting the very purpose of the law. In this view, as pointed out by Pamela Samuelson in Chapter 12, the traditional purpose of copyright law, which is to promote dissemination of knowledge, is distorted when decompilation is an infringement of copyright. Similarly, Samuelson notes the concern that the overlap of patent and copyright protection in computer programs, especially as the scope of copyright is expanded, "would undermine important public policy goals of the patent system, which generally leaves in the public domain those innovations not novel or nonobvious enough to be patented."

In the United States, IPR law presents a problem for technologies such as computer programs and semiconductor chips because it basically assumes that something is either a writing (protectable by copyright) or a machine (protectable by patent), but cannot be both simultaneously. These new technologies challenge this fundamental assumption, because they have



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