Right Brain and Left Brain

Art is said to be the product of our right brain, the right hemisphere of our cerebral cortex that supposedly controls feelings and emotions. Scientific creations, it is said, are the product of our left brain, the left hemisphere that uses logic. Whether true or not, this bicameral description of the two products of human intellect ”art and science ”is useful to help us understand what we do when we create software.

Intellectual property law distinguishes these two kinds of intellectual creations. Our right brain creations are in the nature of expression , most often found in painting, music, fiction , and poetry. Our left brain creations are in the nature of idea , found in our scientific and technical innovations. Expressions are subject to copyright law; ideas are subject to patent law. (A third form of intellectual property, trademark , will be discussed later.)

The boundary line between expression and idea is very fuzzy in computer software. There may be two hemispheres, but there is one brain, and ultimately the software products of our creative intellect are simultaneously art and science, simultaneously expression and idea.

I remember, for example, while a graduate computer science student reading Donald Knuth's The Art of Computer Programming , coming to appreciate that his programs (and a few of mine) were truly works of art in ways sometimes unrelated to the functions they performed. The way Knuth expressed a particular algorithm, for example, became an object of beauty to that young computer programmer. Only someone who has written a tight computer program that does something well can appreciate how much expression goes into writing a piece of software and how emotionally rewarding that creative process can be simply because of the elegance and precision of the code.

Soon after that, I began to write software for Stanford University. As I became immersed in the practical world of grant proposals, teaching, and other university activities, I realized that the functions performed by my programs were far more important to my customers than the beauty of my code. Still later, when I moved into the high technology industry and began to worry about how commercial products are designed, manufactured, distributed, and supported, the art of computer programming became less and less relevant. What was essential were the functions that the software performed, the ideas that it implemented.

Truth be known, both perspectives are correct. When we create software, we create both copyrightable expressions and patentable ideas . The best functioning software is often the best-written software. Elegant source code usually leads to elegant software that does amazing things.

The law didn't originally allow software to be treated as intellectual property, and neither copyright nor patent laws applied to software. Finally, after much debate, in 1980 Congress decided that software should be copyrightable, and in 1981 the U.S. Supreme Court decided that software-enabled inventions should also be patentable. Federal courts and the U.S. Patent Office have since broadened patent coverage of software to include computer readable media that store software . This means that software is patentable. Some still complain about those decisions, but that's the law, at least in the United States.

Other countries have similar laws and policies. Readers in other countries are encouraged to ask their local attorneys for legal advice about specific differences, since some countries do not allow some kinds of software to be patented.

A low level of expressive creativity is sufficient to create copyrightable software, but the standards for obtaining a patent in software are substantially higher. Notwithstanding that difference, the laws of copyright and patent do not require that all art be at the standard of Picasso or that all ideas be at the level of Einstein. Quality of expression and profundity of idea are the province of art critics and the marketplace . To obtain a copyright you must simply be an author of an original work; to obtain a patent you must merely be the first inventor of something new, useful, and unobvious.