Author(s): Peter S. Menell
Abstract: The article describes how the first courts to address the scope of copyright protection for application programs have tended to view application programming as predominantly an exercise in creative expression and accordingly have interpreted the scope of copyright protection in this area quite broadly. As Part I explains, however, many design choices in writing application programs are made by applying the principles of the scientific fields of human factor analysis and software engineering. Thus, the tendency of courts to view application programming as more akin to literary creativity than to scientific and engineering advancement threatens to give broad legal protection to basic principles of human factor analysis and software engineering without requiring the creators of the programs embodying those principles to satisfy the more exacting standards of patent law. The article concludes that a careful application of the idea/expression merger doctrine, recognizing the importance of scientific considerations in application programming and the need to standardize computer-human interfaces, would both foster the invention, development, and diffusion of improved application programs and comport with basic copyright principles.
Keywords: computer software, copyrightLink: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1944635