Copyright Protection of Software under the TRIPS Agreement - Software reengineering and reverse engineering in the context of international trade law

Abstract: In 1994, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was adopted as part of the Agreement Establishing the World Trade Organization (WTO). Pursuant to the TRIPS Agreement copyright protection of computer programs for the first time had received explicit recognition on the international level. Despite obligating all WTO Members to protect computer programs as literary works under the Berne Convention, many questions regarding the scope of protection still remained. The purpose of the inquiry is to assess how much freedom WTO Members have in relation to the substantive provisions of the TRIPS Agreement to implement different innovation policies with regard to software reverse engineering and reengineering. The thesis first puts the copyright obligations relating to software into both their historical and wider regulatory context of world trade law. It then continues with investigating the scope of subject matter coverage under the TRIPS Agreement in relation to computer programs. The study is concluded by assessing the scope of substantive rights conferred by the Agreement in such protected subject matter, especially in relation to software reverse engineering and reengineering. The inquiry is themed around the issue of elements of reusable software, which is central in contemporary software engineering. It is submitted that technology neutrality is the proper standard to align interpretation of software copyright obligations with the basic principles of WTO law. It is therefore proposed that dissection and successive filtering tests are refined by introducing a standards-based model for abstraction parts, and a patterns-based approach to filtering.

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