Beyond the Code: Protection of Non-Textual Features of Software

Although the law of infringement is relatively straightforward on the copying of literal and textual elements of software, it is the copying of non-literal and functional elements that poses complex and topical questions in the context of intellectual property (IP) protection. In many cases, it is these non-literal and functional elements that contain the real value of a software product. This book concerns the copying of non-literal and functional elements of software in both the United States (US) and European Union (EU), using a holistic approach to address the most topical questions facing experts concerned with legal protection of software products across a range of technological platforms.

The book focuses on four distinct but interrelated areas: contract, copyright, trade secrets, and trade-dress; as well as dealing more briefly with patent law, designs, and competition law, discussing these areas separately and in relation to one another. The book discusses software as a multi-layered functional product, setting the scene for other legal discussions by highlighting software's unique characteristics. It examines models for the provision of software, addressing licensing patterns and overall enforceability, as well as the statutory and judicial tools for regulating the use of such licences. It further assesses the protection of non-literal and functional software elements under EU and US copyright law, focusing on internal architecture and behavioural elements. The application of trade secrets law to software is examined under traditional, online, and cloud models. Finally, it examines the application of trade dress protection to software's 'look and feel', particularly relating to the highly topical area of cloud environments. Protecting Software offers a unique outlook on contemporary issues concerning the legal protection of computer software.