Re: [Patents] The response by an MEP

["Seth Johnson" <seth.johnson@realmeasures.dyndns.org>]

I begin to wonder if perhaps the reality of code and computers, their 
very existence as ubiquitous aspects of the world we now live in, is 
being desperately bottled up, hidden away, so that we can all 
remain "consumers" of "traditional goods."

It seems they will stretch so far, just to be able to keep the world 
compartmentalized in a way that I believe some must have always 
thought it could remain in all areas, have perhaps always thought is 
must remain, but a way that we know is utter anathema.

Seth

-----Original Message-----
From: beauprez@beauprez.fsnet.co.uk
Date: Mon, 22 Mar 2004 01:21:42 +0100 (CET)
Subject: [Patents] The response by an MEP

> 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.. 
>