In his recent article “Decoding Divergence in Software Regulation”* Thomas Eimer very convincingly demonstrates and explains differences in software patent regulation between the United States and the European Union. He basically distinguishes three “structural causes for the persisting divergence” (p. 276) – namely the US practice of patenting software versus the European reluctance of doing so: (1) incompatible underlying paradigms, (2) differentiated patterns of power structure, and (3) unsynchronized institutional arrangements.
Especially in dealing with the first cause, “paradigmatic cleavage”, Eimer argues rather broadly, embracing both patent and copyright law. And I completely agree, when he contrasts the strong “utilitarian” rationale of intellectual property rights in the US with European scepticism for such utilitarian reasoning. I am not so sure, however, that the partial rejection of utilitarian welfare assumptions automatically leads to a better balance between “public and private interests” in the field of intellectual property regulation in general, as implied by Eimer when he writes: “Opponents of strong intellectual property rights in Europe can refer to a long tradition of suspicion”.
While this might be true for patent law in general and software patents in particular, it seems to be the other way round in copyright law. There, the European tradition of romanticism and its reference to natural creator’s rights immunizes against utilitarian critique of ever expanding copyright protection terms (for an example of this critique see Lessig’s “Future of Ideas“). This European “natural rights” position recently played a major role in what I called the “German Open Access Uproar”.
So, while (the obviously utilitarian) patent law is and has been stronger in the US common law system, (the not so obviously utilitarian) copyright protection has been stronger in the European civil law tradition. For example, a major argument for the US Copyright Term Extension Act (CTEA) was “harmonization” with longer copyright protection in the European Union. Another example is the copyright protection automatism which was common in Europe decades before it was introduced in the US in 1989.
Interestingly, as both examples illustrate and opposed to Eimer’s findings for software patent regulation, copyright regulation in the US and the EU are definitely converging. What about a comparative study?
* Eimer, Thomas, R. (2008): Decoding Divergence in Software Regulation: Paradigms, Power structures, and Institutions in the United States and the European Union