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- From: PILCH Hartmut phm@a2e.de
- Subject: [Patents] US government concerned about deleterious impact of software patents
- Date: Sun, 10 Sep 2000 12:40:49 +0200 (CEST)
The following e-book seems to be unaccessible from the Net at the moment:
http://books.nap.edu/html/digital_dilemma/
As you can see from the table of contents, it is a report by an agency of
the US administration exploring possible ways of protecting intellectual
property in a digital world, where this type of property is becoming
increasingly destabilised.
The report proposes ways of extending copyright, but at the same time is
very skeptical about applying patents to "information innovations" --- a
good term that maintains the distinction between a patentable "invention"
and immaterial "innovations", which are outside the scope of the patent
system.
Committee on Intellectual Property Rights and the Emerging Information
Infrastructure
Computer Science and Telecommunications Board
Commission on Physical Sciences, Mathematics, and Applications
National Research Council-[comm4.gif]
Contents
Title Page and Notice i
National Academies Statement iii
Committee v
Preface ix
Acknowledgment of Reviewers xv
EXECUTIVE SUMMARY 1
1 THE EMERGENCE OF THE DIGITAL DILEMMA 23
An Enduring Balance Upset? 24
Scope of the Report 27
Origins of the Issues 28
Technology Has Changed: Digital Information, Networks, and the Web
28
Why Digital Information Matters 28
Why Computer Networks Matter: Economics and Speed of
Distribution 38
Why the Web Matters 39
The Programmable Computer Makes a Difference 43
Technology Has Emerged into Everyday Life, Running Headlong into
Intellectual Property 45
Intellectual Property Law Is Complex 47
Cyberspace Is an Odd New World 49
What Makes Progress Difficult? 51
Stakeholders' Interests Are Diverse 51
There Is a Variety of Forces at Work 52
Many Threads Are Intertwined: Technology, Law, Economics,
Psychology and Sociology, and Public Policy 53
The Problems Are Global, with Differing Views, Laws, and
Enforcement Around the World 54
Potential Solutions Have to Be Evaluated from a Variety of
Perspectives 58
Road Map for the Report 60
ADDENDUM:
The Concerns of Stakeholders 61
Creators of Intellectual Property 61
Distributors 65
Schools and Libraries 68
The Research Community 70
The General Public 71
Other Consumers and Producers of Intellectual Property 73
Governmental Organizations 73
Private Sector Organizations 74
Journalists 75
Standards Organizations 75
2 MUSIC: INTELLECTUAL PROPERTY'S CANARY IN THE DIGITAL COAL MINE 76
Why Music? 77
W(h)ither the Market? 78
What Can Be Done? 79
The Business Model Response 79
Make the Content Easier and Cheaper to Buy Than to Steal 80
Use Digital Content to Promote the Traditional Product 81
Give Away (Some) Digital Content and Focus on Auxiliary Markets
82
The Technical Protection Response 83
Mark the Bits 83
Reattach the Bits 84
A Scenario 86
Constraints on Technological Solutions 87
Industry Consequences of the New Technology 89
The Broader Lessons 94
3 PUBLIC ACCESS TO THE INTELLECTUAL, CULTURAL, AND SOCIAL RECORD 96
Public Access Is an Important Goal of Copyright 97
Access: Licensing Offers Both Promise and Peril 100
Access and Technical Protection Services 104
The New Information Environment Challenges Some Access Rules 106
The New Information Environment Blurs the Distinction Between
Public and Private 107
Noncopyrightable Databases Present Access Challenges 109
The Information Infrastructure Is Changing the Distribution of and
Access to Federal Government Information 111
Archiving of Digital Information Presents Difficulties 113
Fundamental Intellectual and Technical Problems in Archiving 116
Intellectual Property and Archiving of Digital Materials 119
Technical Protection Services and Archiving 121
4 INDIVIDUAL BEHAVIOR, PRIVATE USE AND FAIR USE, AND THE SYSTEM FOR
COPYRIGHT 123
Understanding Copyright in the Digital Environment 123
The General Public 124
Rights Holders 128
The Challenge of Private Use and Fair Use with Digital Information
129
The Wide Range of Private Use Copying 130
Arguments That Private Use Copying Is Not Fair Use 132
Arguments That Private Use Copying Is Fair Use 133
Private Use Copying: The Committee's Conclusions 135
The Future of Fair Use and Other Copyright Exceptions 136
Is "Copy" Still an Appropriate Fundamental Concept? 140
Control of Copying 140
Is Control of Copying the Right Mechanism in the Digital Age? 141
What Can Be Done? 144
ADDENDUM:
Sections 106, 107, and 109 of the U.S. Copyright Law 145
5 PROTECTING DIGITAL INTELLECTUAL PROPERTY: MEANS AND MEASUREMENTS
152
Technical Protection 153
Encryption: An Underpinning Technology for Technical Protection
Service Components 156
Access Control in Bounded Communities 158
Enforcement of Access and Use Control in Open Communities 159
Copy Detection in Open Communities: Marking and Monitoring 164
Trusted Systems 167
Protection Technologies for Niches and Special-Purpose Devices 171
Technical Protection Services, Testing, and the Digital Millennium
Copyright Act of 1998 171
What Makes a Technical Protection Service Successful? 173
The Role of Business Models in the Protection of Intellectual
Property 176
The Impact of the Digital Environment on Business Models 177
Business Models for Handling Information 179
Traditional Business Models 179
Intellectual Property Implications of Traditional Business
Models 180
Less Traditional Business Models 181
Intellectual Property Implications of Less Traditional Business
Models 182
Business Models as a Means of Dealing with Intellectual Property
183
Illegal Commercial Copying 186
The Impact of Granting Patents for Information Innovations 192
6 CONCLUSIONS AND RECOMMENDATIONS 199
The Digital Dilemma: Implications for Public Access 201
The Value of Public Access 201
Consequences of the Changing Nature of Publication and the Use of
Licensing and Technical Protection Services 202
Publication and Private Distribution 205
Mass Market Licenses 205
Archiving and Preservation of Digital Information 206
Digital Archives 206
Preservation 209
Access to Federal Government Information 211
The Digital Dilemma: Implications for Individual Behavior 212
Perceptions and Behavior of Individuals 212
Fair Use and Private Use Copying 213
Copyright Education 216
Moving Beyond the Digital Dilemma: Additional Mechanisms for Making
Progress 217
Technical Protection Services 217
The Digital Millennium Copyright Act of 1998 221
Business Models 224
The Interaction of Technical Protection Services, Business Models,
Law, and Public Policy 225
Moving Beyond the Dilemma: A Call for Research and Improved Data 225
Illegal Commercial Copying 226
Research on the Economics of Copyright, Use of Patents, and Cyber
Law 227
Is "Copy" Still the Appropriate Foundational Concept? 230
Content Creators and the Digital Environment 232
The Process of Formulating Law and Public Policy 233
Principles for the Formulation of Law and Public Policy 235
Concluding Remarks 239
BIBLIOGRAPHY 240
APPENDIXES
A Study Committee Biographies 253
B Briefers to the Committee 261
C Networks: How the Internet Works 263
D Information Economics: A Primer 271
E Technologies for Intellectual Property Protection 282
F Copyright Education 304
G The Digital Millennium Copyright Act of 1998 and Circumvention of
Technological Protection Measures 311
INDEX 331
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The Chapter on p 192-197
The Impact of Granting Patents on Information Innovation
reports how the US patent system was gradually broadened by the patent
courts (without legislative support) to include software and business
methods, and analyses a few of the famous cases. The report concludes:
> The effects of this substantial de facto broadening of patent
> subject matter to cover information inventions are as yet unclear.
> Because this expansion has occurred without any oversight from the
> legislative branch and takes patent law into uncharted territories, it
> would be worthwhile to study this phenomenon to ensure that the patent
> expansion is promoting the progress of science and the useful arts, as
> Congress intended.
>
> There are many reasons to be concerned. There is first the
> concern that the U.S. Patent and Trademark Office lacks sufficient
> information about prior art in the fields of information technology,
> information design, and business methods more generally to be able to
> make sound decisions about the novelty or nonobviousness of claims in
> these fields.47 A related concern is the insufficient number of
> adequately trained patent examiners and inadequate patent
> classification schemata to deal with this new subject matter. The
> success of the patent system in promoting innovation in a field
> depends on the integrity of the process for granting patents, which in
> turn depends on adequate information about the field. Serious
> questions continue to exist within the information technology field
> about the PTO's software-related patent decisions. A number of legal
> commentators have pointed out that allowing these kinds of patents
> potentially makes concepts, not technology, the protectable property
> of the patent holder, "allow[ing] virtually anything under the sun to
> win patent protection."48
>
> Second, the tradition of independent creation in the field of
> computer programming may run counter to assumptions and practices
> associated with patents as they are applied to its traditional
> domains. When someone patents a component of a manufactured system,
> for example, it will generally be possible for the inventor to
> manufacture that component or license its manufacture to another firm
> and reap rewards from the invention by sale of that component. Rights
> to use the invention are cleared by buying the component for
> installation into a larger device.
>
> But there is little or no market in software components.
> Programmers routinely design large and complex systems from scratch.
> They do so largely without reference to the patent literature (partly
> because they consider it deficient), although they generally respect
> copyright and trade secrecy constraints on their work. With tens of
> thousands of programmers writing code that could well infringe on
> hundreds of patents without their knowing it, there is an increased
> risk of inadvertent infringement.49 An added disincentive to searching
> the patent literature is the danger that learning about an existing
> patent would increase the risk of being found to be a willful
> infringer. The patent literature may thus not be providing to the
> software world one of its traditional purposes--providing information
> about the evolving state of the art. Much the same could be said about
> the mismatch between patents and information inventions in general.
>
> Third, although patents seem to have been quite successful in
> promoting investments in the development of innovative manufacturing
> and other industrial technologies and processes, it is possible that
> they will not be as successful in promoting innovation in the
> information economy. One concern is that the pace of innovation in
> information industries is so rapid, and the gears of the patent system
> are so slow, that patents may not promote innovation in information
> industries as well as they have done in the manufacturing economy. The
> market cycle for an information product is often quite short--18
> months is not unusual; thus, a patent may well not issue until the
> product has become obsolete. If information inventions continue to
> fall within the scope of patents, then, at a minimum, the patent
> cycle-time needs to be improved significantly. Patent classification
> systems for information innovations may also be more difficult to
> develop and maintain in a way that will inform and contribute to the
> success of the fields they serve.
>
> One final reason for concern is that developing and deploying
> software and systems may cease to be a cottage industry because of the
> need for access to cross-licensing agreements and the legal protection
> of large corporations. This in turn may have deleterious effects on
> the creativity of U.S. software and Internet industries.
- [Patents] US government concerned about deleterious impact of software patents, PILCH Hartmut phm
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