A case for sui generis treatment of software under the WTO regime

Is software a 'good' or 'service'? Deriving an answer is no easy task. Given the volume of trade in software, the prominence software has gained in international trade and the advent of the Internet and electronic commerce, answering this question is of paramount importance. In particular, the absence of a definition of 'goods' in the General Agreement on Tariffs and Trade and the existence of a deficient definition of 'services' in the General Agreement on Trade in Services has resulted in Members of the World Trade Organization (WTO) adopting varying approaches in classifying software. While this article focuses on the importance and consequence of software classification in the context of the WTO, upon an examination of the different approaches adopted by legal systems across the globe it also considers whether maintaining a goods-services dichotomy in software products is necessary. Given the unique and complex nature of software, it will be argued that sui generis treatment of software is the most appropriate solution to minimize the consequences of the differential treatment of software in the context of the WTO.