Policy Statement on Software Patents

Scope

The European Patent Office, in spite of a majority of its correspondents from Industry as well as Academia being in opposition to its proposals, has already issued a directive to the effect that Europe is to fall in line with the United States in respect of software patents. While this is an unjust, almost tyrannical, system of intellectual control, and is recognised to suppress innovation rather than protect it, it is a fait accompli and there is little to be done now to revert this decision. We must instead concentrate on making suggestions on how the law on software patents can be enacted to avoid the greater injustices of the US system.

To the harbingers of the software patent legislation in the UK, we say this:

• Please read this document: we tried to keep it short;
• Please listen to Lawrence Lessig's half-hour presentation "<free_culture>" on the state of affairs in the US to appreciate how important and damaging your actions may become.

Both the above together will take less than an hour, and could change the outcome of the proposed systems from gifting all of the work of European software developers to a handful of multinational corporations to providing a level playing field in which European companies can compete fairly and equitably.

"If people had understood how patents would be granted when most of today's ideas had been invented and taken out patents, the industry would be at a complete standstill today"

The Centre for Music Technology is a cosmopolitan institution, and indeed receives substantial funding for much of its research from European Commission projects. Without proper protection for the authors of this and other software, innovation and progress would certainly be damaged. We believe that the proposed new patent system for software is exceedingly dangerous to the future prosperity of Europe, and unless very carefully enacted, will result in an essential monopoly being granted to a few large software institutions, none of them European.

We would wish at the very outset to make a statement regarding the creators rights to protection of any original work. Many of us choose to use the open source method for the dissemination of our original work, and we would try to persuade others of the benefits of this scheme. However:

The European Commission seeks to preserve European heritage and culture by directly funding projects which do this. This Centre is participates in and supports such projects. However, some of the commercialisation of our culture already prevents us from contributing in certain areas, for example the assignment of the exclusive rights to the digital representation of the UK's National Portrait Gallery collection to Microsoft Corporation, at a bargain price and before the socio-economic impact that digital storage and transmission were fully appreciated by those outside this field.

It is to Mr Gates, the then-CEO of the Microsoft Corporation, that this section owes its heading.

The mendacity and hypocrisy of large international corporations arising from the blinkered market-view of the economy and consequent disregard for ethical issues has recently been very topical: blatant fraud and deception exercised by Enron; mis-statement of profits by others; Nestlé, who presumably view their contribution to the deaths of infants in Africa, which lead to the boycott of the Perrier awards at the Edinburgh International Festival in 2002, as simply profit-making exercise in the interest of its shareholders; Microsoft's infringement of copyright on Sun's Java Virtual Machine, and the consequent extension of its monopoly in web browsers gained by unfair, and in the US, illegal means over Sun's work, which it was prepared to correct only after enormously expensive litigation.

It is time to protect the public from the abuse of the patent and copyright systems which have been demonstrated in recent times, and we very much hope that the introduction of new legislation can be seen as the time to redress the balance. The following proposals, if enacted, would, we feel, go some way to liberating authors to create their original works while at the same time affording proper protection for inventions and a proper environment for their exploitations

The Proposals

Full and thorough specification

When a patent is filed for a new invention, it is necessary to disclose in detail the operation of the new device or process. Software is really simply the codification of an idea, simply stating an intention does nothing to permit the validity or originality of the idea to be established, or in the case of suspected infringement, quickly discovery of whether of not such infringement has taken place.

Infringement of rights of previously unrestricted use

Many uses of ideas are entirely unrestricted at present. There is no restriction exercised either through patent or copyright on the recipes published in a cookery book, for example.

Software is already protected against unauthorised copying under copyright law. We are not proposing that this protection be lifted or weakened. However, in return for the essential monopoly granted to the patent holder, various rights of the restricted parties must be preserved.

At the Centre for Music Technology, we teach courses in audio programming and digital signal processing. We owe our students exposure to the latest and most sophisticated technology. Our teaching is research-led. We also communicate freely with our colleagues in the field from different institutions and host and participate in research conferences in the field. If the introduction of software patents prevents us from discussing and deploying the protected protected technology for non-commercial purposes, not only will our activities be essentially terminated, but there will be no way of training the future engineers who are to participate in the creation of new patentable material. Only the very large international corporations, which hold hundreds or thousands of software patents, will be able to undertake such training, and Universities will be turned into R&D departments for these institutions, unable by law to perform blue-sky research.

Unintentional "protection"

Occasionally, patents are granted which, because of a shift in available technology, make the extent of the protection granted the holder far greater than was ever intended. An example from the related area of trade mark law is the dispute which arose in the 1980s between Apple Inc., manufacturers of computers, and Apple Corps, the music recording and distribution company set up by The Beatles. Apple Computers had been permitted to use their logo provided that it related to computers and did not impact on the music industry, but during the 1990s, it became commonplace for computers to contain hardware to make recordings and play back music. Apple computers would have been rendered uncompetitive if they had not included this facility, and an expensive dispute ensued.

The problem is exacerbated in software patenting because the enormous rate of change of the technology and applications that it supports. Inventors of genuinely new applications may find themselves unable reasonably to exploit it because a patent exists which, although peripheral, impinges on that area.

Procedure on case-by-case basis

Perhaps one of the most oppressive features of the current US system is that, under their Digital Millennium Copyright Act, it is an offence to investigate the modus operandi of a software device, whereas if certain other proposed laws are enacted, it will not be an offence for a person (e.g., a patent holder) who suspects an infringement is taking place to break into the offender's computer systems, and even to erase information, without informing the alleged offender even of the intention to do so. It is quite clear that one would only have to change a few nouns in the previous sentence to make it describe the behaviour of a fundamentalist religious or politically extreme state, yet these proposals are seriously being considered, and being considered in spite of the vocal opposition of many of the US electorate.

We suggest that a regime which assumes innocence of the alleged offender until proven otherwise would be more appropriate in a moderate democracy. Indeed, there should be some legislation in place to prevent large corporations from starting a process of expensive litigation purely to prevent the inventor of an original software product from successfully bringing it to market, whether of not an infringement had occurred. Cf Stack vs Microsoft, a widely publicised example of such an action being taken in the way the law intended. Examples in the opposite direction are impossible to find for the obvious reasons, as to publish them would almost certainly result in accusations of libel, although we can say that a member of this Centre has received personal threats from a publishing house relating to his free software activities. Most small companies and almost all individuals are forced to fold when they receive threats, relating to alleged patent and copyright infringements, as large corporations are in the position to make any counter-claim or even denial prohibitively expensive.

Duration of a patent

In software, the rate at which information disseminates is very much greater that with other technologies, essentially because the incremental cost of distributing an creating an extra copy is negligible. Consequently, the duration of protection afforded by a patent should be reduced, because the benefit of any further protection would be vanishingly small, and because it is iniquitous to deny others freedom of use beyond the time limit where the inventor is reasonably able to benefit appropriately.

Who actually owns the patent?

The cost of filing a patent application and steering it through the acceptance process can be very large, to the extent that independent inventors are usually unable to afford it and are therefore required to seek corporate assistance. The benefit of the patent therefore usually passes to a publishing or manufacturing corporation, and the extent to which the benefit remains with the inventor is greatly reduced.

Contracts of employment often assign all rights to the employer, regardless of whether an employee has worked entirely in his/her own time on the project. Surely this must be in contravention of the working hours directive! It is not inconceivable that an inventor has been obstructed by an employer from working in a particular direction, only to find that the employer owns the entire rights of the resulting invention.