Preserving the Public Domain: Limits on Overlapping Copyright and Trade Secret Protection of Software

The traditional understanding of intellectual property (IP) suggests that each IP category has a discrete subject matter of its own and exceptions thereto. Based on such an understanding of IP law, one would assume that there would not be overlapping IP protection for the same subject matter or product features. However, this understanding does not hold water. It has been argued that the development of overlapping IP rights has intensified as the subject matter that can be protected has expanded through the introduction of new rights and as the scope of protection for existing rights has increased. What may be particularly problematic is that, when policymakers focus on one IP regime at time, any issues arising from IP overlaps may remain undetected. For quite some time, there has been a policy tendency towards broadening the scope of intellectual property protection, which has led to a decrease in scope for the public domain. This tendency shows that the value of the public domain has not been appropriately identified or at the least not appreciated. One way to define the public domain is as the sphere that is not protected by any form of IP. This article will focus on the overlaps created by the Software Copyright and Trade Secrets Directives with regard to the protection of software. The ultimate aim of the article is to query whether the combined effects of these two Directives could be interpreted in a way that limits the undesirable expansion of protection.