Il dibattito sull’opera utile par excellance: il software.

The debate regarding software protection and in particular whether software innovations are better spurred through the implementation of copyright vis-a-vis patent protection is one of the longest in the history of IP law. The debate arose at the end of the sixties in the United States of America and was initially framed in terms of which paradigm was best suited to protect software, hence worth being adopted as official instrument of protection. As well known, the debate seemed to end, both in USA and Europe, with the recognition of copyright, as instrument to foster creativity in such sector. Nonetheless, both in USA and in Europe a significant portion of software innovations recur to patent protection. As experience has come to show, the two instruments of protection must not necessarily be seen as alternative, as software should be considered just as any other technical means which can well be implemented to write a computer program, in the meaning espoused by the Copyright Directive, but can also be employed to build a software invention, which can take the form of both a complex technical device which works thanks to the instruction given by the software or of a tiny sliver of technology, performing a single function to be adopted in several electronic devices. The acknowledgement of such coexhistence, however, is not the end of the debate, as we must now deal with the issues such coexhistence is likely to bring about.