The Mythical Code-Authorship

Abstract

Modern copyright law emerged during the transition from the 18th to the 19th centuries, centred on the figure of the author as the originator of unique, creative works. Authors were seen as deserving legal protection, both because of their creative labour and their vulnerable position in publishing contracts. Over time, this framework has expanded to include various creative outputs, including musical works, films, and computer programs. However, the incorporation of software into copyright law occurred without sufficient understanding of its development process, leading to conceptual tensions. This paper addresses two interrelated aims. First, it examines, from a primarily European Union perspective supplemented by illustrative United Kingdom authorities, whether changing perceptions of software—particularly its collaborative, iterative and functional nature—require a recalibration of copyright analysis. Second, it challenges two persistent misconceptions: (1) that software authorship is straightforward and legally unproblematic, and (2) that most source code qualifies as protectable under copyright. These assumptions, foundational to existing copyright regimes, fail to reflect the realities of programming and contribute to a growing disconnect between legal theory and software practice. The paper is divided into two major parts: the first critiques prevailing copyright assumptions using sociological and psychological insights into authorship and creativity, revealing the mismatch between the solitary-author model and the inherently collective, structured nature of programming. The second part proposes a revised framework that accounts for the collaborative and social character of code creation. Here, the main observation is that authorship is understood more technically, through programmatic attribution, rather than through traditional legal concepts. In conclusion, the paper advocates for a more nuanced and interdisciplinary approach to copyright law—one that acknowledges the complexities of software development and better aligns legal doctrine with technical and social realities. This shift is crucial to addressing the growing misfit between copyright’s foundational assumptions and the nature of modern software production.