Today this blogger came across an interesting article published on
the New Scientist's website,
entitled: "Should
business be allowed to patent mathematics?" Beginning with the philosophical
question of whether mathematics is invented or discovered, the article quickly
moves to the real reason that some argue that mathematics should be patentable:
money. In particular the article asks, should computer software be patentable?
Patents are granted for inventions, and because most mathematical
formulae are deemed to be abstract ideas rather than inventions, formulae are
not patentable in many countries. An express exclusion of computer software
from patentability is provided for both under the European Patent Convention
(EPC) and the UK Patents Act 1977. The EPC tends to take a liberal approach to
this exclusion whereas the UK tends to be more restrictive, making it difficult
for owners of computer programs to be sure of what protection they will be
afforded by patent law.
Copyright on the other hand is relatively straightforward: in the
EU the Software
Directive clearly states at Article 1 that: "Member States shall
protect computer programs, by copyright, as literary works". Of course the
protection offered by copyright is limited to original works, and protection
extends only to the program exactly as it is written down. SAS
v World Programming Ltd confirmed that neither the functionality of a
computer program (i.e. the look and feel of the program when used) nor computer
languages may be protected by copyright. Still the limited protection offered
is clear, and in the UK copyright protection arises automatically without the
need for an expensive application process as is the case for patents.Computer software must be one of the few areas where patents and copyright overlap, making it interesting to look at the pros and cons of each type of protection. In particular the convergence of copyright with patents in the world of computer software indicates to this blogger that once again, we are trying to fit rules developed for art, music, scientific inventions and processes to the new world of computer science and the internet. The two do not always sit easily together so perhaps it is time for a new law, drafted specifically with the internet and computers in mind. What do readers think? Is it a question of square peg, round hole or can we (in common law jurisdictions at least) rely on case law to bring older legal concepts up to date?
Software is a round peg and both patent and copyright are square holes. Patent protection is too exclusive and comprehensive, while copyright probably does not protect enough and infringement analysis becomes dangerously metaphysical. Narrow, very limited term protection for software that under some exclusion for obviousness/prior art might make protect creators without enabling trolls.
ReplyDeletea lot of Work have been done over the years to design law so that it fits software. In the 70´ies a sui generis law was tested in WIPO, and didnt Work. So now we are left with both patent and copyright protection covering different aspects of software. Any legal changes face very opposite positions blocking any real Progress. See the proposed EU directive on protection of computer implemented inventions as a horrible example og nothing being achieved
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