Software protection and International Legal Protection for Software Chart

This report summarizes the legal protection available for computer software in most significant markets around the world as of June 2008. It also identifies changes in the availability of legal protection since the 2007 version of this report. The methods of protection covered are copyright, trademark, patent and contract.

The accompanying chart summarizes whether software is currently within the subject matter protected under the copyright or patent law of each country listed. Since the extent of copyright protection for a software work also depends on mutual membership in an international convention or a bilateral agreement, the chart identifies convention memberships. Certain bilateral agreements between the United States and other countries are identified as well. Thus, for both U.S. and foreign software, the current availability of subject matter protection in a particular country can be determined from the chart. Local counsel should be consulted, however, before distributing software in a particular market, to confirm and update this information and to advise on the practicality of enforcement, evidentiary considerations and other protection mechanisms.

Not all national laws or convention memberships provide retroactive protection for previously published or unpublished software, so the effective date of the law and the membership can be critical in determining whether a particular work is protected. Such issues of timing are beyond the scope of this report.

Summary

Although the availability of legal protection for software has increased rapidly around the world over the past fifteen years, the scope and the feasibility of enforcement of that protection continues to vary significantly by country. The use of the Special 301 provisions of the 1988 U.S. Trade Act has resulted in greater protection for software, as well as other intellectual property, in several countries. The Business Software Alliance and the Software & Information Industry Association have been effective forces for monitoring software piracy around the world, promoting legislative and attitudinal changes and taking legal actions to enforce copyright protection. The accession of the United States to the Berne Convention, the NAFTA provisions and the establishment of the World Trade Organization (as a successor to the GATT), which fosters the protection of intellectual property rights through the TRIPS Agreement, were important milestones in the use of multilateral agreements for dealing with protection for software. These multilateral efforts are intended to promote adequate and effective protection of intellectual property rights while ensuring that national laws enforcing such rights do not themselves become barriers to trade. In most countries, the only meaningful remedy is to seek an order to stop or enjoin further infringing activities, with only limited prospects for collecting damages.