[Patents] more inflammatory speeches from Greg

[seth.johnson@RealMeasures.dyndns.org (Seth Johnson)]

PILCH Hartmut wrote:
> 
> > Copyright is not a natural right.  It's not a property right.
> 
> The German Constitutional Court (BVerfG) has extended the notion of
> "property rights" granted by art 14 of the Basic Law (GG, constitution) to
> include all kinds of immaterial titles, including copyright and patents.

The American tradition hasn't gone this far, from what I understand.  I
say this notwithstanding the possible value of the German Court's
position, as per your comments below.

> 
> This enlarged property concept is awkward and outrageous at first sight,
> but in fact some advantages, because it allows a view on how property is
> acquired and limited.  Patents, like other property titles, according to
> this, need to be granted according to the principle of "social
> responsibility of property", and since copyright has been found to be the
> adequate legal rule for acquiring software copyright, nobody has the right
> to introduce software patents (which void copyright property and thus
> violate art 14 GG) without a change of law which takes the social
> responsibility and limitations of property etc into account and thus bring
> considerations to bear that eventually destroy the playground of semi law
> experts such as patent lawyers (or patent busters), who until now were
> acting in a legal (or "science and logic") world of their own.
> 
> > It covers expression, not the elements of expression.
> 
> I think this view is too limited.  It covers everything that
> individualises a work and makes it attributable to a creator, be it
> expression or not.  In the sense that copyright property extends only to
> the individualised aspects of the work, it fullfills the requirements of
> what people would call natural rights.  If there are any such rights, the
> author's right to his work (the individual aspects that distinguish it
> from the works of others) is one of them.

It's not a reductive statement.  But it does draw a distinction that's
necessary.  Regarding the fact or idea vs. expression dichotomy, it's
very pertinent to this discussion with Greg.  The aspects of a work that
signal its originality have to reconcile with this distinction.

Seth Johnson