[Patents] RE: protection needs beyond copyright? (fwd)

[phm@a2e.de (PILCH Hartmut)]

---------- Forwarded message ----------
From: PILCH Hartmut <phm@a2e.de>
Subject: RE: protection needs beyond copyright?
To: intprop-l@topica.com

> I think it is absolutely clear that copyright protection for a computer
> program is streaching the system in a horrible way.

While you have shown yourself to be a comparative law expert, the problems
you analyse are only theoretical and also partially based on
misconceptions.  I will try to point out some below.

> - Americans have no problems with regarding the employer as the creator of
> the work in case of "work made for hire", which is absolutely impossible on
> the continent;
> - Europeans need the concept of neibhbouring rights where clearly the
> creativity is insufficient to say that the work bears any personal trace of
> the author, the Americans again have no problem granting original copyright
> protection.
> (Uffff, I hope I have proven my eligibility to take part in comparative law
> discussions).

Right, but not much more in this case.

> The result can be seen eg. in Inkasso Program (BGH 9 May 1985, 1 ZR 52/83,
> IIC 5/1986 p. 681 see also comments in the Dietz article above). Where the
> court has said that there is a need to examine the program as to its
> creativity in order to say whether it would be copyrightable. The guidlines
> the court gives are in fact suprisingly similar to examination of
> non-obviousness in patent. As Dietz has summarised: "the only thing which is
> really certain now in Germany is a major uncertainty as to the quiestion
> under what conditions and in how many cases copyright protection for
> computer programs is really available".

Here someone is complaining about difficulty of applying certain newly
elaborated complex notions.  Paul Geller (participant on this list) also
has worked that out nicely.

However difficulty of applying complex concept is a problem mainly for
lawyers.  In practise we encounter it every day and it does not make a
system inadequate in the least.  Conversely, a system with seemingly
clearer concepts may be completely inadequate.

> After the implementation of the directive the German Courts have to
> re-address the issue and state that in fact a lower originality
> standart has to be applied to computer programs (the decision of BGH
> is from 14 June 1993, I don't have the full cite at the moment.)

Yes, it is the low originality standard which is also applied to
scientific writings, instruction manuals, maps and the like.

> 2. Software is utilitarian it has no interaction with the human brain
> as its aim.

This half-truth also applies to maps, scientific writings, instruction
manuals, musical scores and the like.  Their aim is not to create some
sensation in the human mind by a verbal expression (as in poetry), but to
convey a concept that, when put to practise in a second step, must
function correctly.

Moreover, all these works are also directed to the human mind, namely to
the collective of potential authors who keep reworking this information
and improving it.  Particularly in software, this function is very
important, and trying to negate it today would mean a fallback into a dark
age of unenlightend IBMPC/M$OS hype.  Even during that dark age, software
was a communicative process of an expert community, but this fact was
ignored by a large group of naive software users who tended to believe
that modern life was based on some great hokuspokus invented by the genius
Bill Gates.

> My personal opinion as to why copyright was ever streched to encompass
> software is that it was done for political issues under the very
> strong pressure from the US.

That did play a role in killing sui generis approaches such as the one
planned by the Japanese MITI at the beginning of the 80s.

However, the virtually unanimous and lasting acceptance of copyright in
the software community (not in the legal theory community) can also not be
ignored as a decisive factor.

I tried to explain the phenomenon above:  the legal theory community's
misgivings about software copyright are typical academic squabblings about
the clarity of some abstract concepts, partially even based on
misunderstandings such as the ineradicable idea that copyright is only for
poetry and not for utilitarian information works.

> Therefore playing the anti-American tune while supporting the copyright for
> software is a bit schizophrenic.

I am not playing any anti-American tunes.
The US vs EU superiority/inferiority whatever discourse was thrown in by
someone else.
I forgot who it was and am not interested.

> For the above reasons I would support my fellow countryman Jozef with
> all my Polish hart in his quest against software copyrights (but not
> against patents).

I can summarise: many copyright theorists find copyright intellectually
unsatisfying.  Software authors and users however usually find copyright
fairly adequate for their purposes, and there are no major complaints,
except on some details (such as abandonware, DMCA etc).

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

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