Re: [Patents] removal of copyright protection ?

[PILCH Hartmut <phm@a2e.de>]

> One of the major problems as I see it with a patent-only approach, is
> that it still leaves a large proportion of software legally
> unprotected, especially if the law is changed so that fewer patents
> get issued.

Indeed it would put most software in the public domain.

I tend to think that property in individual creation is something close to
a natural right.

In some areas where there is little individual creation (little complexity
of logical structures) you still may have a high creation effort due to
the necessity of experimenting with physical forces.  That is where the
patent system comes in.

One might argue that finding algorithms also requires a high creation
effort, and indeed it sometimes does.  The problem however is that
programming is an area of high work complexity where the right to
individual creation (copyright) and algorithm property (similar to
patents) would be in a conflict that has to be resolved.

One way is to rely on copyright and informal market mechanisms.  This
appears to have worked fairly well.

Another is to try to add a short-term mitigated exclusion right for
algorithms according to a certain procedure, preferably without
examination or other heavy-weighted stuff that is inappropriate to the
speed and complexity of creation in this area.

In a way the principle of individual creation can extend to algorithms, if
it is taken narrowly and if the scope of protection fades with time.  If
the scope is narrow and the time short, it comes close to an individual
creation and its use by someone else during the first 1-2 years after
publication of a certain program (not of a set of claims) can be
reasonably assumed to be an act of lazy copying.

On the other hand, interface copyright could expire earlier, because as
soon as a part of a work becomes a defacto standard, it loses its
individuality.

Copyright could be developped in a differentiating way, with different
expiry terms for different kinds of individual creation: the more
individualised the longer.

By reviewing some one-size-fits-all rules of copyright, one can extend it
to build almost anything which programmers may think desirable.  But in
any case, the complex work character of computer programs determines that
copyright is the necessary starting point for any software property
system, and that the patent system should stay confined to the clearly
marked area of non-complex technical inventions where it came from.

-- 
Hartmut Pilch                                          http://phm.ffii.org/
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
100,000 signatures against software patents      http://www.noepatents.org/