The Origins of Software Patenting: The Fatal Presumption

When we talk about copyright we often refer to it not extending to “a method of operation”. What this has led many to claim wrongly is that the expression of a computer program is only literally “the lines of code” in written form. This is a thoroughly misguided presumption.

Copyright protection of expression extends “in any manner or form”. If it didn't then when a musician would write some music on paper, or on a disk and it was performed by a synthesizer, the protection as a literary work under copyright would end because it was a method of operation for a machine. This has never been the intention of copyright law.

Copyright excludes “methods of operation” because otherwise one could describe a process in a book and inherit inventors rights to it. It is plainly wrong to say that because of this exclusion the execution of a program (or it's public display, performance or communication) is not covered by copyright and is therefore patentable.

If we were to apply this to the music example we would be saying,

“You own the expression in notation of your work but not the performance of it , which can be an invention owned by someone else.”

Doesn't make much sense does it?

The WIPO copyright Treaty is unequivocal on this it says,

“Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, People take now design twitter backgrounds: black,white,red,blue. whatever may be the mode or form of their expression”

What the WIPO treaty is saying is that it doesn't matter in what form a computer program exists, it is protected as a literary work under law. Therefore it cannot, in itself ,also be an invention when it is executed. The invention must be a physical process that happens outside of data processing, otherwise we are patenting a literary work in a way that is prejudicial to authors and unacceptable under The Berne Convention, The WTO(Trips) Treaty and the WIPO copyright treaty which all state that computer programs are to be protected “as literary works” under copyright .

The software copyright directive of 1991 also proves this,

““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 ”

The claim that the expression is only the lines of code in written form and not the execution of the code, or that a computer program and a data process that it conducts are separate entities is ridiculous. The only real separation must lie in the realisation of a new, useful, and non-obvious physical product or process, and not nonsense about “normal interactions between software and hardware”.

A computer program is,

“ a set of instructions that a computer can interpret and execute” ,

and can never by itself produce an effect that goes beyond the “normal interactions” with a computer. Computers have always been designed to run the instructions of software- every interaction is a “normal interaction” . Software has always been written to be executed on a computer , and protected as a literary work with this in mind.

Why does any of this matter? To software authors this issue is one that determines their futures' in the business.

If we have a system that allows both copyright and patenting of software (per se), we create 2 classes of software author.

Author A , who is a little less affluent than his counterpart, gets the copyright (for free) to the expression of his work. He is supposed to have the rights to perform his work in any manner or form. These rights are “exclusive” meaning that they cannot be shared with another right holder unless that right holder has co-written the work. If someone copies his work, he is entitled to claim infringement but must prove that the copy has been knowingly lifted from his work. Author A cannot own the concept behind his literary work.

Author B gets a patent on his new, useful and non-obvious data processing solution, since he has the money to hire a good lawyer and pay the patent fees. He describes a process whereby data is collected, managed and recorded in a certain way that he argues improves performance of the computer. Author B can prevent other people from re-creating his inventive concept. The problem is that his patent could cover the expressions of thousands of other computer programs when they are performed. Author B doesn't have to prove infringement, merely that someone has implemented his “concept” on their computer with the use of a program.

If author A happened to write a program that matched Author B's concept, he would lose his rights to distribute, perform and broadcast his original works, unless he paid author B for a license to use “his idea”. This could happen even though Author A had no knowledge of Author B's supposed ownership of the concept, this is why patent law and copyright cannot co-exist in the same field. It also explains why pure software patenting is, in reality , in breach of international requirements that we do not unfairly prejudice the rights of the author.

© 2004 Christian Beauprez. Please feel free to redistribute, quote and link.

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