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have been that copyright permits use of the existing international copyright treaty network so that the right holder can obtain global coverage easily.23

CONTU went on to define the technical adaptations to copyright law needed to encompass computer programs, for example, to allow the ''copying" of a program into computer memory as an essential part of the use of the program. Congress followed the CONTU recommendations in amending the Copyright Act in 1980 to define "computer program" and to authorize such copies.24 Courts straightforwardly resolved a variety of similar, relatively technical issues (i.e., whether different principles should apply to software embedded in a microprocessor chip, on the grounds that such software is not published in the same sense as software sold on a disc.)25

However, the courts found it much more difficult to resolve the more fundamental questions noted above. In rather controversial decisions, the U.S. courts provided protection to structural features of a program26 and to its look and feel,27 but with at least one court taking a contrary opinion.28 From the viewpoint of many critics, who include a large portion of the academic specialists in the area,29 this extension of coverage provides the equivalent of patent protection (and for an irrelevantly long 75 years),30 without requiring that a patent-quality innovation be achieved and disclosed. Moreover, the logic of the cases involves significant stretching of the distinction between idea and expression. It is understandable to seek to interpret the relevant law to provide some form of protection to the intellectual logic and structure of the program—a creation that may involve significant expense and creativity. Yet, as long as one is within the copyright tradition, it is hard to say that this logic and structure are not in fact ideas and therefore unprotectable. The courts' efforts to describe these features as

23  

Thus, the Berne Convention provides for automatic protection in all member countries, The Berne Convention for the Protection of Literary and Artistic Works, Art. 5 [Paris Act of July 24, 1971]. The Universal Copyright Convention, as revised at Paris, 1971, does have some formalities, but none requiring the types of filings that are typical of patent coverage.

24  

Pub. L. 96-517, 94 Stat. 3015.

25  

E.g., Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984) (operating system); NEC Corp. v. Intel Corp., 10 USPQ 2d 1177 (N.D. Cal. 1989).

26  

Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987).

27  

Lotus Development Corp. v. Paperback Software Int'l, 740 F. Supp. 37 (D. Mass. 1990); Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127 (N.D. Cal 1986).

28  

Plains Cotton Cooperative Assn. v. Goodpasture Computer Service, Inc., 807 F.2d 1256 (5th Cir.), cert. denied, 484 U.S. 821 (1987).

29  

See, e.g., P. Menell, An analysis of the scope of copyright protection for application programs, 41 Stan. L. Rev. 1045 (1989); P. Samuelson, CONTU revisited: The case against copyright protection for computer programs in machine-readable form, 1984 Duke L.J. 663.

30  

17 U.S.C. sec. 302.



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