Why Copyright Law Excludes Systems and Processes from the Scope of its Protection

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Citation: Pamela Samuelson (2007) Why Copyright Law Excludes Systems and Processes from the Scope of its Protection. Texas Law Review (RSS)
Internet Archive Scholar (search for fulltext): Why Copyright Law Excludes Systems and Processes from the Scope of its Protection
Download: http://ssrn.com/abstract=1002666
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Summary

102(b): "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

Author says idea/expression well known, but other exclusions worthy too, hence recommends speaking of "unprotectable/protectable distinction."

Provides history of Baker (1880) and progeny (also game rule cases) exclusions, leading up to 1976 copyright act. Concerns about software copyright mentioned in 1964, legislative history for 1976 acts shows 102(b) added to ensure scope of restricting computer programs would be limited, but rarely mentioned subsequently for that purpose.

Conclusion:

Developing a more robust tool kit for limiting the scope of copyright protection that includes § 102(b) is important for many reasons, including preserving the public domain, promoting the ongoing creation and dissemination of knowledge, stimulating competition and innovation in the marketplace, and maintaining a proper balance between the rights of authors and the rights of the public in intellectual property law.