Introduction

[The contents of this chapter] Chapters one to four considered various legal regimes that are technology-neutral; ie whose subject matter is not limited to a specified technology or product. The majority of intellectual property law is of this nature, promulgating abstract standards that apply to a wide range of products and processes, innovations and technologies to determine whether they are entitled to some form of legal protection. However, two regimes are technology-specific: layouts of integrated circuits are the subject matter of the Circuit Layouts Act 1989 (Cth) and plant varieties are covered by the Plant Breeder's Rights Act 1994 (Cth); these regimes are known as sui generis, in that they are tailored to a specific product.

The emergence of computer programs triggered a debate on the adequacy and suitability of existing technology-neutral regimes, and the option of crafting a new special regime; but ultimately the alternative of adapting the rules of copyright to accommodate computer programs prevailed. Nonetheless, since computer programs are functional, unlike any other copyright subject matter, statutory rules and judicial approaches have since been adapted, so that computer program copyright has developed into a ‘sui generis system within a system’. This is one reason for covering the topic here, but this also permits comparing computer program copyright with software patents, the other available option. After initial resistance, over time the suitability of patent protection has become accepted, so software patents are now more common.