Patent protection for software needs to go
New Zealand needs to think about 'fair use rights' before signing up to international treaties
Friday, June 11 2010 || Comment || BY Rob O'Neill
Mostly these discrete protections don’t overlap; they have their own jobs to do and have worked pretty effectively together for many years. They not only protect the private, but the public as well. Within concepts such as copyright, trademark and patent protection are clear rules about what can’t be claimed, mostly things already owned by other people, or rights owned by the public.
They also, mostly, contain rules to pass private IP into the public domain after a period of time. That’s because they aren’t just about protecting acts of creation or invention, but about a greater good, that of fostering and encouraging even more innovation.
There are some things that are inherently unprotectable, such as mathematical formulae, and there are things that should be unprotectable, like natural DNA — but that doesn’t stop people from trying.
At heart, for any form of IP protection to apply something has to be created — something unique and not obvious. Then one of the protections can kick in to protect that creation for a limited period of time.
But these simple rules and boundaries have become blurred over the last 20 or 30 years. It has become possible to patent business processes and software in some jurisdictions. There have even been some outrageous raids on natural DNA, for which there can never be any justified claim except, perhaps, by God.
Discovery is not invention.
Claims of this dubious kind are simply described: they are theft. They are attempts to steal from the common weal.
New Zealand is about to undo some of the bad work of the last 30 years, with Commerce Minister Simon Power seemingly set to end patent protection for software. It’s a move that has been greeted with a resounding chorus of approval from most IT industry organisations, with the exception of NZICT, which has a significant number of multinational software vendors among its membership and describes the move as “worrying”. Patent lawyers don’t seem too keen on the idea either.
Software has always been protected by copyright. To argue it should qualify both as a publication protected by copyright and an invention protected by patent is to confer special status indeed.
The New Zealand Computer Society put the argument against patents best: “Copyright provides protection against a company or individual copying a competitor’s product, is entirely appropriate, and a protection we very much continue to support. The difference is that in many cases software patents prevent the fair use of what we consider the fundamental concepts and actions of the internet and software, whereas copyright protection is appropriately limited to manifestations.
“If software is viewed as a manifestation of ‘real world’ concepts then the real world concept can be patented without the need for a separate software patent. From the perspective of a manifestation, copyright provides the appropriate protection and a software specific patent becomes superfluous.
“If on the other hand software is considered as a separate concept from the physical world it must be considered an algorithm, in which case it would not pass the test of patentability in most jurisdictions.”
Arguments about IP are becoming more heated. Secret negotiations around the Anti Counterfeiting Trade Agreement (ACTA), around section 92a of the Copyright Act, around technical protection mechanisms, also known as digital rights management (DRM), around format shifting and in other areas abound.
In that context, ending patent protection for software is just a good start. Increasingly, I feel there needs to be an explicit statement in New Zealand law about fair use rights, especially if we are to sign up to any international treaties.
In New Zealand this is expressed as ‘fair dealing’ but the definitions are exceptionally vague and need to be broadened and codified, to include, for instance, rights to use copyright material for parody.
In addition to definition and protection of fair use, there should be protection from unreasonable burdens. Even if one admits some merit in software patents (I don't but many do) it is unreasonable if the cost of defending privileges given by patents exceeds the value of what is patented and far worse if the cost of defending oneself against claims of patent infringement are so high that businesses and individuals cannot defend themselves, even against unfounded claims.
Posted by Anonymous at 06:27 on June 24, 2010
ReplyFlag abuse