Address to the FFII delegation 14/04/04

Parliament Directive vs. Council “Compromise”

As someone with an interest in law and issues of software authorship I have always taken an interest in emerging internet and software law. I should say now that my primary area of legal expertise is mostly based in contract and the copyright aspects of law. Historically these are the areas of interest to software authors. So why am I here? Well when a computer implemented invention is also a computer program, my rights as a software author suffer. It is not mere personal experience but research into this question that has led me to this conclusion.

Mr. Bakels has give an excellent definition of the differences between copyright and patenting. He must forgive me if I restate any of what he has to say but it is important to understanding the points I am about to raise.

This is what I like to call a tale of two rights holders.

Under copyright an author has exclusive right to produce and profit from his original works. Under patent law an inventor has the exclusive right to do likewise but also to block others from re-creating his inventive concept. An author cannot own underlying ideas to his work, but an inventor can.

This is why defining a boundary between the two is critically important not only in the area of data processing but in all areas. The author and the inventor cannot share the same field because their rights are contradictory. Although this happens all the time in the practice of other countries, it is not mandated in the international treaties.

On the question of exactly what a computer implemented invention is, we should first ask what a computer program is.

according to,

computer program n : (computer science) a sequence of instructions that a computer can interpret and execute”1

Let's now have a look at the definition of a process,

a series of actions that you take in order to achieve a result:”2

we can see from the definition that a data process caused by software is synonymous with software itself and interchangeable with an effect upon a computer. This is an incredibly important point.

Computer programs and the effects they produce have always been known to be the same thing. In the software copyright directive of 1991 protection of computer programs as literary works was defined clearly ,

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, transmission or storage ”3

Unfortunately the patent offices have confused a computer process (aka a computer program) with a patentable process. This is why we have the directive in the first place apparently.

Programs for computers could be considered as patentable inventions if they have a technical character”4

according to the EPO.

This is a breach under international obligations. A program for a computer cannot be considered as an invention not only under article 52 EPC which states,

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

  1. programs for computers;”5

Article 10 of the TRIPS Treaty adds to this,

Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).”6

The WTO's interpretation on clause 10 was,

"The obligation to protect computer programs as literary works means e.g. that only those limitations that are applicable to literary works may be applied to computer programs.”7

Article 4 of the WIPO copyright Treaty has an identical clause,

Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression”8

Literary works are by definition not inventions. If literary works could be inventions then all ideas within them were new, non-obvious and useful could be patented as inventions. We would also not be allowed to prevent this because discrimination under Article 27 of Trips on the field of technology is prohibited.

There are also obligations under the these Treaties regarding how we can treat this protection.

Under TRIPS article 1

"Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. " 9

Under this Article of the TRIPS Treaty we are allowed to apply more stringent forms of protection than is provided in the Treaty. But this is subject to provisos namely that such protection would not be in contradiction to other clauses. Such as article 9 of the Berne Convention10 , Article 10 of the WIPO Copyright Treaty and Article 13 of TRIPS. These are the articles that show computer program patenting to be in contradiction and explain why the Council compromises are deeply flawed.

Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”11

Again the WIPO Treaty explains even more clearly,

(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.

(2) Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.12

In software and computer processes the “right holder” is defined as an author of an original work and not as an inventor.

It is important to note that an original work does not contain completely new ideas, but existing ideas mingled with abstract or logical innovation. Just as the author of a book cannot claim every supposedly new and useful embedded idea that they use. Ideas are not inventions unless they have a physical application.

It is therefore essential that any clarifying directive should state clearly that a computer program or the effects produced by data processing which are synonymous, are not patentable material. The European Parliament does so explicitly by stating that data processing is not a field of technology. Indeed they are quite correct to do so. A computer is a glorified calculator. This is why people working in data processing are known as authors and are protected by copyright. No one can own underlying ideas when they are logical or abstract expressions with no physical appliance apart from a passing reference to a technical improvement on a computer or network. One can own a unique expression of logical or abstract ideas under copyright but these ideas themselves are the property of humanity even if they are non-obvious at first sight.

If we let people claim the logical ideas produced by data processing as being patentable inventions we would be opening up the field to a new right holder who could aggressively pursue their rights to a monopoly, and prevent software authors who create original works from profiting from them, even if they have no knowledge of a patent. This is where the above clauses concerning the authors exclusive rights are violated.

How does the councils proposal seperate the author from the inventor? ,

Inventions involving computer programs which implement business, mathematical or other methods and do not produce any technical effects beyond the normal physical interactions between a program and the computer, network or other programmable apparatus in which it is run shall not be patentable. [EP Amd. 17 corresponds to 14017/02.] 13

So whats the problem with this description? Well the EPO had an identical definition in their case law in 1999 in 1173/97 (OJ 1999, 609) and T 935/97,

Thus, a computer program claimed by itself was not excluded from patentability if the program, when running on a computer or loaded into a computer, brought about, or was capable of bringing about, a technical effect which went

beyond the "normal" physical interactions between the program (software) and the computer

(hardware) on which it was run. The board has not yet decided how such a claim is to be

formulated. “14

The very next listed case:

In T 513/98 patentability (Art. 52(2) and (3) EPC). “

"Even if the new features of the system did not change the hardware of the known system, the required software changes would nevertheless cause the system to be technically different with respect to the dividing, storing and transmitting of mail handling data “15

Once again the effects of data processing were being patented on the grounds that they could cause a computer to be technically different. This is a thoroughly misleading misconception. Software is a set of logical instructions it can never, in itself, cause an effect on a computer which the computer was not already intended to perform- if it did the computer would not be able to interpret them. It may perform an improvement on methods currently used but these methods are not inventions they are computer programs and as such protectable only under copyright.

What the Parliament's proposal does effectively is state clearly that a resulting process must be a real and physical process outside of data processing and that this kind of claim is unallowable . It does so by defining industry in a strict sense and stating clearly that data processing as a field is not a field of invention. It also specifies that the new invention must contain a teaching to applied natural science (forces of nature) and not to mere logic or abstraction as found in computer programs and all other literary works.

What the Council compromise does is re-introduce outmoded safeguards that have already been overrun by EPO practice. If we can all agree that we want to stop pure software patentability as everyone in European politics recites like a mantra, then why can we not have our directive passed into law? The Council document proposes a “compromise”, but there can be no compromise. Either computer programs are literary works or they are inventions and international law says they are literary works. definition of a "computer program"

2Cambridge International Dictionary of English definition of a "process"

3The Software Copyright directive (1991) Article 4

4EPO Case Law T1173/97 (OJ 1999, 609) and T935/97 (1998)

5The European Patent Convention Article 52

6Article 10 WTO (Trade Related Aspects of Intellectual Property)

7WTO Interpretation of Article 10

8WIPO Copyright Treaty Article 4

9Article 1 WTO (Trade Related Aspects of Intellectual Property)

10Article 9 of the Berne Convention

11Article 13 WTO (TRIPS)

12WIPO Copyright Treaty Article 10

13Council Compromise Directive examined on the FFII

14EPO Case Law T1173/97 (OJ 1999, 609) and T935/97 (1998)

15EPO Case Law T513/98

©2004 Christian Beauprez. Fair use upheld. Please feel free to quote and link all you like.

Always seek legal counsel on specific cases.

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