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Other nations have gone through their own patterns, a number providing a U.S.-style mixture of patent and copyright law. A few have attempted sui generis proposals. Japan considered such an approach in the early 1980s and gave it up in the face of strong U.S. opposition.35 The EC, after much U.S. lobbying and international discussion of the details of the proposal, adopted its own sui generis approach in a 1991 directive.36 (As with the proposed EC biotechnology directive, this is technically an adaptation of existing law, copyright law in this case. The rules are so specific, however, that the directive can reasonably be called sui generis.) It is particularly interesting that each of these nation's laws have raised special issues that are both significant and different from those at issue in the United States. Thus, the Japanese law finally adopted as an amendment to the copyright law excludes "program languages, rules, or algorithms."37 The EC directive debate extensively considered whether interfaces should be protectable. Protection of interfaces would economically strengthen those with a large installed software network by enabling them to restrict the ability of others to market interoperating equipment. The directive basically declined to create such protection, but it was difficult to devise an appropriate exception to the directive's general prohibition on decompilation of a program. The result is that some fear that they cannot understand a program's interface without inadvertently violating the directive's general prohibition against decompilation.

The legal difficulties in this area are an order of magnitude more severe than those in biotechnology. In biotechnology, one has a sense of new and difficult questions. In software, one has not only that sense, but also the more troublesome sense that the statutory models being used are fundamentally ill-adapted to the task and push the courts either to ignore important economic incentives or to twist the statutory language. The combination of troublesome questions and an ill-adapted statute suggests that CONTU was almost certainly wrong in its judgment that the copyright system should be used instead of a sui generis approach.38

35  

D. Karjala, Protection of computer programs under Japanese copyright law, [1986] 4 E.I.P.R. 105.

36  

Directive 91/250 on the legal protection of computer programs, May 14, 1991, OJ 1991 L 122/42.

37  

Article 10(3) of Copyright Act, Law No. 48 (1970), as amended by Law No. 62, adopted June 7, 1985.

38  

For similar judgments, see Office of Technology Assessment, Intellectual Property Rights in an Age of Electronics and Information 88-94 (April 1986); and Prepared Statement of P. Samuelson before the House Subcommittee on Courts, Intellectual Property, and the Administration of Justice, November 8, 1989.

Note also that for each of the technical legal issues, there are relatively clear business winners and losers who have played an enormous role in the political debate. In general, up



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