Re: [Patents] confusion about terminology

[Gregory Aharonian <srctran@world.std.com>]

>>We must be careful to speak about "software publisher" as intellectual
>>works (such as computer programs) that are published and not manufactured.

>Yes, we try to avoid that.

You are wasting your time with this tactic of relying on Berne to help
you fight software patents.  First, Berne is a bit vague on wht forms
of protection literary works should be provided - Berne mostly justs
says that they should have protection.  Protecting software with patents
is not incompatible with Berne.

Even if you assume Berne mandates copyright protection for literary
works, and you can somehow convince everyone that software is any more
literary than a circuit diagram, you have the problem that Berne has no
copyright laws as part of it - instead, you have to defer to each
country's (or regions - EU) copyright law.

And the governing copyright law that has plagued software caselaw for
decades to the point of rendering software copyright pretty much useless
for any aspect of software beyond identical copying, is that only the
expression of "things" covered by Berne are protectable, not the "ideas".
That is the foundation principle of American caselaw and the WIPO
copyright treaty.

And for thirty years, few if any have been able to determine an objective
way to distinguish "idea" from "expression" in software - read US court
decisions to see lawyers and judges failing to do so.  Indeed, for general
literary works, like books and movies, the courts are struggling to
figure out how to distinguish idea from expression.  It is a real
intellectual mess.

But at least for software, software is pretty much process and method
which is comfortably compatible with a patent law that has no
idea/expression dichotomy, which is why over the last fifteen years
most serious software protection has switched over to patents.  You
may not like it, but it is far less illogical than reasoning about
software in the copyright world.

So this Berne tactic is a waste of time - since the end result of using
Berne lands you back in the dilemma of distinguishing idea from expression
in software, which on both sides of the Atlantic has been an intellectual
quagmire of conflicting opinions for thirty years.

Also, it is silly to say that software is not "manufactured" to make it
more literary, when increasingly more and more of what is literary
(especially music) is manufactured (the insulting Hollywood term for
this is "formulaic").

Greg Aharonian