Intellectual property is a broad concept that covers several types of legally recognized rights originating from some type of intellectual creativity or that are otherwise related to ideas. Intellectual property rights are rights to intangible things, i.e., ideas as expressed (i.e. copyrights) or as embodied in a practical implementation (i.e. patents). Fundamentally, intellectual property rights are rights in ideal objects, distinguished from the material substance in which they are instantiated. In today’s legal systems, the key forms of intellectual property are (i) copyrights, (ii) trademarks and (iii) patents.
Copyright is a right given to authors of “original works,” such as books, articles, movies, and computer programs. Copyright gives the exclusive right to reproduce the work, prepare derivative works, or perform or present the work publicly. However, copyrights protect only the form or expression of ideas, not the underlying ideas themselves. While registering a copyright with a competent registration authority to obtain specific legal advantages is possible, such registration is not a prerequisite for a copyright to exist. A copyright comes into existence immediately upon the production of the work in a “tangible medium of expression” and lasts for the life of the author plus an additional period (depending on country-specific intellectual property regulations) in which the employer exclusively owns the copyright.
A trademark is a word, phrase, symbol, or design used to identify the “producer”, i.e., the source of goods or services sold, and to distinguish them from the goods or services of others, i.e. market competitors. For example, Apple Inc.’s “bitten apple” mark on their products identifies them as that company’s products, distinguishing them from competitors such as, e.g., Samsung. Trademark law primarily prevents competitors from infringing upon the trademark, i.e., using confusingly similar marks to identify their own goods and services. Unlike copyrights and patents, trademark rights can last indefinitely if the trademark owner continues to use the mark and renews its registration with the competent registration authorities under applicable statutory regulations.
A patent is a property right in inventions, i.e., in devices or processes that perform a “useful” function. A patent effectively grants the inventor a limited monopoly on the production, use, or sale of the invention. However, a patent only grants the patentee the right to prevent others from practising the patented invention - it does not grant the patentee the right to use it. Moreover, not every innovation or discovery is patentable; for example, in the US, three categories of subject matter are non-patentable, i.e. laws of nature, natural phenomena, and abstract ideas.
The legal protection of intellectual property rights on computer programs, i.e. software, has been the subject of much debate. Since computer software is one of the main pillars of the information society, this is truly an issue of global concern. Arguably, the process of writing computer software, i.e. coding, is highly creative, and the software industry is one of the most valuable in today’s knowledge-based economies. Hence, software is expected to enjoy protection under intellectual property laws worldwide. However, the subject that raises a lot of controversy is – what type of protection computer software should enjoy. For intellectual property to be legally protected as a copyright or a patent, it must meet specific requirements, i.e., in, the context of patent protection – it must be an invention which performs a “useful” function. To examine the patentability of computer software, one must examine what it is. Fundamentally, computer software is a collection of coded instructions written in a language that a computer can read (programming language). However, to enable the running of a certain software application, it has to be installed on adequate hardware (PC, laptop, smartphone, set-top box, etc.) equipped with an adequate operating system (a special software application that creates an environment for the installation and running of different software, e.g. Mac OS/X or iOS, Microsoft Windows, Ubuntu, etc.). Therefore, the production of computer software goes beyond coding since, depending on its specific use, it must be functionally integrated within a specific hardware and operating system environment.
Currently, the legal protection of computer software varies significantly across jurisdictions, reflecting divergent approaches to intellectual property rights. In the United States, courts have recognized that software can qualify for patent protection through the “article of manufacture” doctrine. This approach considers software stored on a computer-readable medium, such as a USB or CD/DVD, as a patentable invention if it contains instructions that enable a computer to perform a specific process. In contrast, the European Union applies a stricter standard to software patentability. Under EU law, software cannot be patented unless it demonstrates a “further technical effect” beyond the normal interactions between hardware and software. This means that a computer-implemented invention must satisfy the general patentability criteria applicable to other fields: it must (i) exhibit technical character and address a technical problem, (ii) be novel, and (iii) involve an inventive technical contribution to the existing body of knowledge (prior art). Consequently, software that fails to meet these requirements cannot be patented in Europe. The same is true for North Macedonia since its laws are harmonized with EU standards.
While some countries have adopted the broader U.S. approach, allowing more expansive patent protection for software, many jurisdictions continue to restrict software protection to copyright. In such systems, software is classified as a “literary work,” granting automatic copyright protection without the possibility of obtaining a patent. Thus, the current global landscape for software protection relies on a mix of copyright and patent mechanisms, with the applicable framework varying significantly depending on the jurisdiction.
Copyright protection for software is automatic upon its creation and fixation in a tangible medium, classifying it as a “literary work” under copyright law. This protection safeguards against unauthorized copying, requiring others to obtain the author’s consent, typically in exchange for monetary compensation. However, copyright protects only the expression of ideas, not the ideas themselves, and does not shield against the independent creation of similar works. Patents, in contrast, provide broader protection by granting exclusive rights to prevent others from making, using, selling, or offering to sell the patented invention, regardless of whether the infringement was intentional or independently created. While patents are generally more robust, they require rigorous examination processes, including a demonstration of the invention's novelty, inventive step, and in many jurisdictions—such as the EU—a “further technical effect” in the case of computer-implemented inventions. These requirements make obtaining a patent for software both costly and time-consuming, which may not align with the rapid pace of technological advancements and software obsolescence.
Although copyright offers a longer duration of protection (life of the author plus 70 years in many jurisdictions) compared to patents (typically 20 years), this advantage is less significant in the fast-evolving software industry. Additionally, the lack of registration requirements makes copyright more accessible and cost-effective, whereas patents necessitate substantial financial and administrative resources, often creating barriers for smaller enterprises.
Given the distinct strengths and weaknesses of each framework, both copyrights and patents play vital roles in protecting software. However, the limitations of copyright, especially its inability to address independent creation and technological piracy, lead many companies to prioritize patents. Yet, the fragmented global patent regime remains a significant hurdle. A universally harmonized legal framework for patenting software could address cross-border enforcement challenges and create a more predictable environment for innovation.
By Gjorgji Georgievski, Partner, ODI Law
