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Global Dimensions of Intellectual Property Rights in Science and Technology
devices and as processing units. A second was the visible commercial success of some early PC applications software—most notably, Visicalc, and then Lotus 1-2-3—which significantly contributed to the demand for PCs as well as making other software developers aware that fortunes could be made by selling software. With these developments, the base for a large mass market in software was finally in place.
During this period, computer manufacturers began to realize that it was to their advantage to encourage others to develop application programs that could be executed on their brand of computers. One form of encouragement involved making available to software developers whatever interface information would be necessary for development of application programs that could interact with the operating system software provided with the vendor's computers (information that might otherwise have been maintained as a trade secret). Another form of encouragement was pioneered by Apple Computer, which recognized the potential value to consumers (and ultimately to Apple) of having a relatively consistent "look and feel" to the applications programs developed to run on Apple computers. Apple developed detailed guidelines for applications developers to aid in the construction of this consistent look and feel.
The first important legal development—one which was in place when the first successful mass-marketed software applications were introduced into the market—was passage of amendments to the copyright statute in 1980 to resolve the lingering doubt about whether copyright protection was available for computer programs.13 These amendments were adopted on the recommendation of the National Commission on New Technological Uses of Copyrighted Works (CONTU), which Congress had established to study a number of "new technology" issues affecting copyrighted works. The CONTU report emphasized the written nature of program texts, which made them seem so much like written texts that had long been protected by copyright law. The CONTU report noted the successful expansion of the boundaries of copyright over the years to take in other new technology products, such as photographs, motion pictures, and sound recordings. It predicted that computer programs could also be accommodated in the copyright regime.14
Copyright law was perceived by CONTU as the best alternative for protection of computer programs under existing intellectual property regimes. Trade secrecy, CONTU noted, was inherently unsuited for mass-marketed products because the first sale of the product on the open market would dispel the secret. CONTU observed that Supreme Court rulings had cast
Whether computer programs were protectable under copyright law prior to the 1980 amendments has been the subject of some dispute. See Samuelson, supra note 2.