aspects of both—many see computer programs as involving both authorship and invention. This not only makes it difficult to draw meaningful boundaries between patents and copyright, it also raises the question of whether alternative intellectual property paradigms should be explored. In other countries, the dichotomy between copyright and patents is not so strong, and other intellectual property paradigms, such as utility models and industrial designs, exist and are widely used.
Sui generis approaches are an alternative to existing intellectual property paradigms. Sui generis forms of IPR are unique property rights designed to protect a specific new technology that does not fit easily within existing IPR categories. They have the advantage of specifically recognizing the special issues posed by new technologies and tailoring protection to the specific problem. Moreover, developing a sui generis law allows the problem to be dealt with as a whole, rather than piecemeal in the courts. It can also avoid potential harm to the technology and to the law itself from applying an inappropriate legal framework.
Sui generis approaches have a number of disadvantages, however. They require legislative action, and, as pointed out by Morton David Goldberg in Chapter 14, it can be difficult to design a law that is flexible enough to maintain the desired balances and degree of protection in the face of continuing change in the technology and industrial structure. Moreover, both John Barton (see Chapter 11) and Goldberg note that it may be harder to undo errors in sui generis laws. Another factor weighing against a sui generis approach is the need to negotiate new treaties on emerging technologies for which there is little consensus as to the appropriate form or degree of protection. There is concern that sui generis laws make IPR law more complex, confusing, and uncertain.
The international dimension adds another level of complexity to adapting intellectual property systems to new technology. A key difficulty is trying to achieve international consensus on an IPR approach to new technologies when there is often no consensus within countries on the appropriate approach and when the economic interests of different nations may dictate a different balancing of interests in the IPR law. These seem to be the issues that are holding up agreement on specific IPR rules in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) negotiations.
Computer programs may provide an example of the difficulties. The