Fw: [Patents] confusion about terminology

["Christian Beauprez" <beauprez@beauprez.fsnet.co.uk>]

----- Original Message ----- 
From: "Christian Beauprez" <beauprez@beauprez.fsnet.co.uk>
To: "Gregory Aharonian" <srctran@world.std.com>
Sent: Monday, April 26, 2004 12:37 AM
Subject: Re: [Patents] confusion about terminology


> Dear Greg,
>
> Thankyou for you contribution.
>
> > 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.
>
> Ok  so how do we patent software and not prejudice unfairly the rights of
an
> author to exploit his original works?
> After all an author over the other side of the world can have the same
idea
> and use it in a different work.
> What's to say author A is the "inventor" of a concept but author b has no
> rights to produce and profit from his original works?
>
> > Even if you assume Berne mandates copyright protection for literary
> > works,
>
> Which it does
>
>  and you can somehow convince everyone that software is any more
> > literary than a circuit diagram,
>
> We don't have to it's already there in black and white under (entrenched)
> law, really I would suggest that you read the treaties before you make
> definitive statements on them.
>
> >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.
>
> The Berne convention is the recognised standard of international copyright
> law- there is also enough flexibility there for countries to have some
scope
> to control their own laws this is the nature of most international
treaties.
>
> If patents are more appropriate to protect software, then they should have
> specified so in the Trips treaty. Strange it doesn't read,
>
> "Programs for computer shall be protected as inventive processes under
> patent 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.
>
> Yes, so why how can ideas be an invention? Inventions are appliances of
> science that the world has never seen before (e.g. the light bulb) not an
> idea. (it is a monopoly we are granting after all)
>
>
> > 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.
>
> It's using a precision tool for deducing who really owns what, of course
it
> is at times complicated, but far more preferable to a sledgehammer.
>
>  What copyright cases have to decide is when the expression is similar
> enough to warrant infringement rather than ,
>
> "I own that idea, so I'm the inventor because I have a piece of paper from
> the PTO and can sit on a logical patent and milk people for it, because
> noone else has ever had that idea before, even though it is logical"
>
>  (If this is such a wonderful system how come no one agrees with you
except
> IP lawyers? )
>
> > 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,
>
> Couldn't have said it better myself. Software is a process. Exactly. A
> computer program is by definition a literary work and a process. It's
quite
> simple really. Playing music is a process but it's not a patentable one,
it
> is an "artistic work". Computer programs are "literary works" get over it.
> No one put a gun to any of the government's heads when they signed these
> treaties.
>
> As far as I can see apart from people being misled over Article 5 by talks
> of " products and processes", there is nothing in these treaties saying
that
> software as a process (by any means and in any form)  should be protected
> any other way, so I recommend that you go to your representative and ask
> them to renegotiate the TRIPS and the WIPO treaties and the Berne
Convention
> while you are at it (you know it's what we used to call democracy before
> lobbying took over).
>
> 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.
>
> They have but it is illegal under international obligations. This
"serious"
> protection is overly broad, this is why you have to spend time busting
"bad"
> patents.
> If this dichotamy is so problematic then why does copyright still exist at
> all for books, music or anything else? How come there aren't groups
popping
> up left, right and center to oppose "bad copyrights". Of course copyright
> isn't perfect- no law is , but it is far less problematic than patent law
in
> software.
>
> > 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.
> >
>
> Well it seems that it's getting quite a lot of attention and people I know
> are saying it makes far more sense that patenting.
>  (Ask the 94% of software authors and the public who are asked rather than
> the IP lobby)
> At least copyright protection is free for all authors and gives them
rights
> to profit from their own works, as opposed to someone elses.
>
> > 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").
>
> I think you will find that software is written by an author. It's not
> created by an industrial process (maybe the disks are)... Likewise music
is
> created by an author and is not created by an industrial process
(although
> a computer may play a part in it's realisation). That is why we defined
> software as a literary work in the same way that music is defined in the
> same category. They are original works but they are by no means inventions
> because they are based on deductions formed on what went before this is
why
> software patents are inevitably trivial by nature.
>
> Hope this clears things up for you,
>
> Chris
>
>