The response by an MEP

[beauprez@beauprez.fsnet.co.uk]

Hi everyone,

(to those of you who have already recieved this message, I have added further 
thoughts and research).


I must say that I have been disappointed with the quality of the
legal argument from the pro-patent camp.

They try to get round this argument with the "logic" that the invention is
not the program itself but the "technical effect" it has on a "computer
apparatus". This "logic" is ridiculous. This argument is the same as
saying that a piece of music can transform magically from an "artistic work"
to an "invention" when it is played on an instrument- indeed no one writes 
software to sit on a diskette doing nothing, and copyright has never been 
limited to this expression in reality. 

(e.g. The European Software Copyright Directive Article 4 -1991)

"(a) the permanent or temporary reproduction of a computer program by any 
means and in any form, in part or in whole. Insofar as loading, displaying, 
running, transmition "


Therefore a computer program is the "technical effect" and no patent office 
has been able to describe adequately the difference between a supposed 
"further
technical effect" that would constitute an "invention". Because it does not
exist.

 Even if they could identify a difference between "technical effect" and
"further technical effect",  this does not change the fact that it is a
"computer program" and as such is a literary work (therefore an artistic
property rather than an industrious one), whether it has an inventive step,
novelty and application to an industry or not.

I was told by a pro-patent MEP that my comparison was "patently absurd" (!)
because other literary works could not provide the "inventive step",
"industrial application" or "novelty" requirements. To this I would simply
point out that we refer to the "film industry" and the "music
industry" everyday, and to say that a literary work could not contain an
"inventive step" (e.g. a stage in a process that is new) was as ridiculous
as saying it could not be "new and unusual" as the definition "novelty"
implies.

The only other argument of note they could come up with was the special
provisions for software under European software legislation that amended
some aspects of copyright protection (e.g. Article 6 Decompilation) . This is 
held up as a way that we can ignore the definition of software as a "literary 
work".

However he failed to mention the restrictions that were placed on this 
directive in the very same Article. It says,

"In accordance with the provisions of the Berne Convention for the protection 
of Literary and Artistic Works, the provisions of this Article may not be 
interpreted in such a way as to allow its application to be used in a manner 
which unreasonably prejudices the right holder's legitmate interests or 
conflicts with a normal exploitation of the computer program"

Therefore to compare the fine tuning of copyright to computer programs to a 
method that would prejudice this protection is totally bogus, it is clear in 
this Directive that should any conflict occur, then the Berne Convention 
would override.

I do hope that others will pick up on these points and expose these
arguments to be the smoke and mirrors they really are..