From phm@a2e.de  Tue Aug 14 16:51:27 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Tue, 14 Aug 2001 17:51:27 +0200 (CEST)
Subject: [Patents] protection needs beyond copyright?
In-Reply-To: <0.700002152.233987537-738719082-997790790@topica.com>
Message-ID: <Pine.LNX.4.31.0108141647390.7579-100000@querty.oas.a2e.de>

> Jozef Halbersztadt wrote:
> > >
> > > "In case special anti-cloning protection is really demanded
> > > by the software industry, as the DGIM claims in its invitation
> > > paper, Mark Paley's Model Software Patent Act could provide a
> > > useful source of inspiration". There will be no problem with
> > > acceptance of sui generis right system by both sides of the
> > > great divide. It is the highest time for the DGIM to commission
> > > kind of additional measure should be taken to allow sui generis
> > > a study proposing what right to work: (1) How to seal up
> > > patents field, (2) How to convert issued patent rights to sui
> > > generis rights (3) What kind of special provisions are needed
> > > for Open Source software. If the DGIM staff remains blind
> > > this work will be done without them.
> >
> Hartmut Pilch wrote:
>
> > Currently the problem here is that we cannot discern any real demand
> > for anything beyond copyright and competition law.  Although my
> > impression is that such a demand does exist and is to some extent
> > legitimate, none of the IT associations that took part in this
> > "consultation exercise" was able to formulate any examples of market
> > failures of the copyright based regime which would need to be
> > addressed.

> If they do not deliver I will try. To me the failure is clear from the
> famous Lotus cases concerning spreadsheets. They definited what is
> protected in software by copyright. There is no need to be an
> psychologist to see reasons of Kapor's motivation. The last court case
> is even more stanning than election of the current US President. The
> Supreme Court was deadlocked in 1996 in 4-4 nondecision.

This still doesn't answer the question we are trying to answer:  where is
the need for posession/monopolisation of anything beyond the individual
composition (also called "tissue" (Gewebe) by German copyright caselaw),
and to what extent can it be justified?

> In Europe we do not care about software copyright because European
> software "propietary" industry is weak and 90% "propietary" software
> products on European markets is foreign made. In result there are not
> many software cases in European courts, the producers can regulate
> their rows at home.

Still there have been a lot of cases of software copyright law in German
courts, quite a few of them brought all the way up to the BGH.  And the
current regime has been well accepted by most people in the software
industry.  Which doesn't mean that it is optimal.

> It is because of failure in copyright "propietary" software producers
> were prompt in trying new tactics in an effort to protect their
> products by patents.

Maybe it is the other way around:  because patents were offered, software
producers were eager to get them.

When guns are offered for sale, people will also try to get them.

When a few people stand up in a cinema to better see the screen, everybody
will stand up.

None of these examples proves that there is an overall need, either for
anti-cloning protection or for guns or for standing in the cinema.

> Thus, it is important to draft a concrete legislative proposal
> redefining software's role within the intellectual property statutory
> scheme.

It would certainly be good to have one unified proposal for software
rather than several competing ones.  The important thing at the moment is
to clearly restate the exclusion of software from the EPC and make clear
that there is only [special-tailored] copyright and no other form of
software property (I wouldn't consider competition law or trademark law
forms of software property).

> Copyright is not enough because computer programs differ too much from
> "White Christmas" or "Ring of Nibelungen". Although the programming is
> an art, the programs are not wanted because of their artistic values,
> but because of their utility.

Copyright covers not only programs and works of literature, but also

	scientific and technical writings
	usage instructions
	plans, sketches, drawings, maps
	sculptures
	music
	pantomime
	painting
	architecture
	photography
	film

and much more.  Among these, software is by far not the only kind that is
valued more for its usefulness than for its concrete form of expression.
It is not even the only kind that "behaves".

Certainly, for a rhyming literary work like "Faust" or "Hamlet", copyright
provides the strongest "protection", because it is very difficult if
possible at all to write a functional equivalent of such a work, whose
value consists more in expression than in function.  Yet Goethe's "Faust"
draws on Christopher Marlowe's "Faust", and even in such dramas there are
novel functional ideas.

All the above work types have in common that usually the work as a whole
has a greater value and requires more work than any of the single building
elements.  If building a machine consisted in "10% inspiration, 90%
transpiration" as Edison said, then for the typical copyrighted works,
including software, the ratio is even more leaning to "transpiration".
One painter estimated it to be 99:1.

It would of course be a good idea to think about these things
systematically, and if any real problems came up, one could try to find a
solution, even of the Manifesto type: short-term monopolisation of some
very special functional principles.  These principles would probably be
situated in a gray area close to copyrighted "tissue", e.g. certain very
individual algorithmic solutions to known problems.  This would however
require a debate at a level which is quite unheard of today.  In an
environment of "patent lawyer junk talk", such as that given in the name
of large companies and associations in response to a CEC consultation
paper, I fear that it could be unrealistic to attempt anything beyond
trying to at least properly understand copyright and fostering a climate
of rational debate.  Maybe once the patent bandwagon is dismantled and the
opportunism of the gold-diggers and thieves (who find it a good idea to
jump on there and expropriate copyright-holders for the benefit of a few
parasites) no longer dominates and poisons the debate, the wounds may
heal and the rational climate may gradually emerge, giving thinking like
that of Samuelson, Kapor and Davis a chance to become more than a
political tool of defusing support/opposition for/against software
patents.

> There are more advanced arguments as well.

Probably the ones I was asking for.

> Crucial are relations with rest of the world. Europeans should have
> possibility to apply for the foreign software patents, especially
> American.

We already have that, and it can be improved.  One simple way of doing it
would be to allow patent offices to carry out examinations and hand out
stamps like "invalid in Europe but meets the standards of the USPTO" (or
JPO or whatever).  There is no reason why the EPO should not be able to
perform the same bridge function for US-destined patent applications that
the DPMA (german patent office) today performs for EPO-destined ones.
Many people use the DPMA as an examination agency.  There could also be
private examination agencies.   All this would be very much in the
interest of free trade and therefore possible to push under TRIPS/GATT
etc.

> That is why Europe should have a special software utility model
> regime.

You have named some arguments for considering it, but most of them
political.

For my part, I have a very low opinion about my ability to oversee
political causes and effects.  What I can oversee is that
- software property needs one single legal regime
- software patents as they stand are idiotic
- software copyright as it stands is adequate
- there is always room for further perfection, but good intentions pave
  the way to hell: perfectionism must take into account that "law is an
  ass" and there is a limit to what one can regulate.

> As someone important recently said in German Parliament: "Behind sui
> generis right proposal is charm and logic". It was noticed in the
> DGIM, I suspect.

> Main principles of the needed action:

I think you also stated those principles in

	http://swpat.ffii.org/penmi/linuxtag-2001/jh/

One of the charms of this action is that it supposes that there is some
rationality behind the patent movement other than just a landgrab of a
parasitic movement.  This is really charming, because it could help us
mitigate the tone of our debate and "end the cold war".  It reminds me of
some of the attempts of the Left in Western Europe to persuade us that
there was some rationality behind the soviet system and that we needed to
find some way to "converge" with them by adopting socialist principles.
In fact there is a charm to such principles, but that wouldn't have helped
us to solve any of the urgent problems with which we were faced at the
time.  I prefer an attitude of open-minded conservatism:  be ready to
accomodate any real need, but never assume such a need for political
purposes when you don't really see it.  I am not a diplomat who engages in
political trading.  All I can do is analyse reality and tell people what I
see, hoping that truth will in the long run have the best political
effect.

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation	      http://swpat.ffii.org/
85000 signatures against software patents         http://www.noepatents.org/









