[WSIS CS-Plenary] WSISPapers Newsletter No.4 - Patents and copyright in computer programs

WSIS Papers accuosto at chasque.net
Wed Jan 19 22:43:43 GMT 2005 

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  WSIS Papers Newsletter - January 2005 No.4
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In this issue: SOFTWARE: PATENTS AND COPYRIGHTS

Content:

  - Software patents and copyright: Background information
  - The debate in Europe
  - Alternatives to traditional copyright
  - Non-profit organizations involved
  - The World Intellectual Property Organization (WIPO)
  - The World Trade Organization (WTO)
  - Other UN agencies
  - WSIS-related information

Available online at:

      http://wsispapers.choike.org/

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Copyright laws are designed to protect the expression of content, as opposed
to content itself. Protected works can express ideas, knowledge or methods
that can be used freely; what copyright laws prohibit is the partial or full
reproduction of such works -whether modified or not- without consent. In
opposition to the copyright model stands the patent system, which grants
monopoly rights over an invention (for a period of approximately 20 years,
depending on the country). Patent owners decide who can use their inventions
and set a price on that use.

Although advocates of the patent system claim that patents promote
innovation by making the invention known to the public, voices are
increasingly being raised against this system, since only large corporations
can afford the costs involved in patent maintenance (including the legal
costs of court proceedings to prevent patent violation). Moreover,
historically, patents have been used to prevent the development of what
might be seen as potential competitors of established technologies owned by
dominant companies in a given sector.

The debate over software patentability and its impact on technological
innovation is not new. In the year 1994, the Uruguay GATT Round closed with
the inclusion of an agreement on trade-related aspects of intellectual
property rights (TRIPS). Most industrialized countries (in particular, the
United States and Japan) played an instrumental role in the adoption of this
agreement, which must be compulsorily enforced by all member countries of
the World Trade Organization (WTO) (73% of which are developing countries).
In particular, article 27.1 of the TRIPS agreement has been construed as a
legal means to justify the patentability of a range of innovations,
including computer programs. The fact that many observers call for a full
revision of this agreement does not deter large software corporations from
joining influential groups of lawyers specializing in intellectual property
or lobbying some governments to advocate in favour of software regulation in
international forums, such as the WTO, or to push patent offices to adopt
measures in this direction. These offices are not financed by public funds.
On the contrary, they derive a substantial part of their income from patent
maintenance costs, a considerable percentage of which comes from a few large
corporations.

In addition, the process of granting software patents has lacked
transparency. In Europe, for instance, even though patent issues were
regulated by the Munich Patent Convention, which established the European
Patent Office (EPO) and expressly prohibited software patenting, thousands
of computer program-related patents have been granted by that same office.
This brings into play issues such as what innovations may be considered
industrially applicable, definitions that can vary from country to country,
and can depend even on linguistic and terminological considerations.

In 2002 the European Commission submitted a proposal for a Directive "on the
patentability of computer-implemented inventions" which would legalize
software patents in Europe. Civil society organizations joined forces to
voice their opposition against this initiative, which would have implemented
in Europe a system similar to the one in force in the United States and
Japan. On 24 September 2003, the European Parliament voted to incorporate a
set of amendments into the Directive, reaffirming the non-patentability of
programming and business logic and upholding freedom of publication and
interoperation. Still, the debate in Europe with regard to software patents
is far from being over.

Furthermore, if we take a look at how Southern countries are affected by the
expansion of "Intellectual Property Rights" (IPR), spurred by industrialized
countries through the World Intellectual Property Organization (WIPO), we
can see that far from encouraging direct investment and stimulating transfer
of technology, an illusion of such phenomena is created through the movement
of funds and technology to and from parent companies of multinational
corporations and their foreign subsidiaries. The smallest companies, for
their part, are forced to allocate a significant portion of their budgets to
paying for licenses, thereby greatly curbing local development initiatives.
Moreover, when arguments are wielded in favour of extending IPRs to
scientific and educational information, which is currently in the public
domain, the future of the least industrialized countries turns even bleaker,
as they risk being trapped in their role of consumers of Northern-produced
technologies.

In August 2004, governments of Southern countries, led by Brazil and
Argentina, presented a proposal for a Development Agenda at WIPO. Some of
the proposals specially addressed the concerns of developing countries,
while others aimed to redirect WIPO to give more weight to general consumers
' and public interests, including patents and copyrights. On October 2004,
the WIPO General Assembly issued a decision that creates a rapid evaluation
of the Development Agenda. This opens an opportunity to promote changes in
WIPO's policies. Prior to the General Assembly meeting hundreds of
nonprofits, scientists, academics and other individuals had signed the
"Geneva Declaration on the Future of WIPO," which calls on WIPO to focus
more on the needs of developing countries, and to view IP as one of many
tools for development - not as an end in itself.

When ICTs are being consolidated as a means to share knowledge and
information, limiting access to these technologies is seen by many as a
violation of fundamental rights. The future of the flow of information and
communication in the South largely depends on finding solutions to these
issues, which should be at the heart of the debate around ICTs global
governance at the World Summit on the Information Society (WSIS).

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 Software patents and copyrights: Background information
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*  Software Patents: Questions, Analyses, Proposals
What is the effect of patents on the economy in general and on software in
particular? Why do software patents tend to be so trivial? What exactly have
the rules of patentability in Europe been and how did they change? Under
what constraints is the patent system moving? What are our choices? With
this collection of articles, members and friends of the FFII workgroup on
software patents try to give answers.
--> http://swpat.ffii.org/analysis/index.en.html

*  Software Useright: Solving Inconsistencies of Software Patents
This paper gives an overview of the principles, the economic impact and the
potential juridical contradictions of patents and especially software
related patents.
--> http://smets.com/it/policy/useright/

*  Electronic Frontier Foundation (EFF)
Based in San Francisco, USA, EFF is a donor-supported membership
organization working to protect fundamental rights regardless of technology;
to educate the press, policymakers and the general public about civil
liberties issues related to technology; and to act as a defender of those
liberties.
--> http://www.eff.org/IP/

*  Intellectual property and computer software, a battle of competing use
and access visions for countries of the South
Source: IPRsonline.org
Alan Story
This case study produced by the UNCTAD-ICTSD Capacity Building Project on
IPRs and Sustainable Development (May 2004) claims that "intellectual
property protection" have erected a clear barrier to the spread of software
across the South. It also states that free software formats might offer
advantages for technology transfer and that they are not a mere policy
choice for developing countries but an important alternative for building,
maintaining and changing rules that govern information flows. PDF format.
--> http://www.iprsonline.org/unctadictsd/docs/CS_Story.pdf

*  Software patents: A really bad idea
Source: ZDNet
Robin Gross, IP Justice Director and former IP attorney for the Electronic
Frontier Foundation, gives a US perspective on the dangers of the EU
following North America's lead on software patent laws.
--> http://insight.zdnet.co.uk/software/developer/0,39020469,39155171,00.htm

*  Issues in the regulation of Intellectual Property Rights, Computer
Software and Electronic Commerce
Source: IPRsonline.org
Ruth L. Okediji
Among other conclusions, the author expresses that developing countries must
insist on the possibility of enacting domestic limitations to WIPO and WTO
agreements, including the application of compulsory licenses, to digital
works. PDF format.
--> http://www.iprsonline.org/unctadictsd/docs/CS_Okediji.pdf

*  The political economy of Intellectual Property protection: The case of
software
Source: London School of Economics
Kenneth Shadlen, Andrew Schrank, Marcus Kurtz
The authors perform an analysis of new transnational factors in "IP
enforcement": countries' multilateral obligations under the World Trade
Organization's IPRs provisions; and bilateral pressures from the United
States to increase the protection of IPRs. They conclude that for most
(especially developing) countries, the benefits obtained by increasing
copyright protection would appear to be outweighed by direct and indirect
costs. PDF format.
--> http://www.lse.ac.uk/collections/DESTIN/pdf/WP40.pdf

*  Open Source Software: Free provision of complex public goods
Source: IPRsonline.org
James Bessen
The author states that in the case of complex goods as software, the FOSS
development model can increase social welfare. PDF format.
--> http://www.researchoninnovation.org/opensrc.pdf

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 The debate in Europe
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*  Foundation for a Free Information Infrastructure (FFII)
Non-profit association registered in Munich, devoted to spreading
data-processing literacy. FFII supports the development of public
information goods based on copyright, free competition, and open standards.
Considered the most comprehensive repository of information on the European
software patent debate.
--> http://www.ffii.org/index.en.html

*  Petition for a Software Patent Free Europe
Petition directed to the European Parliament to warn European Authorities
against the dangers of software patents. This petition was supported by the
EuroLinux Alliance, European companies and non-profit associations.
--> http://www.noepatents.org/index_html?LANG=en

*  EuroLinux Alliance
The EuroLinux Alliance for a Free Information Infrastructure is an open
coalition of commercial companies and non-profit associations united to
promote and protect a European Software Culture based on copyright, open
standards, open competition and open source software.
--> http://www.eurolinux.org/index.en.html

*  The File on Software Patents
Includes information on legal, economic and social aspects of Software
Patents.
--> http://www.noepatents.org/reference/index.html?LANG=en

*  Free Patents
Information and news on software patents in Europe.
--> http://www.freepatents.org/

*  The Greens - European Free Alliance in the European Parliament
Contains information concerning the latest Software Patentability
Conferences in Europe.
--> http://www.greens-efa.org/en/issues/?id=14

*  Free Software Foundation - Europe
The FSF Europe supports all European aspects of Free Software; especially
the GNU Project. It also provides an assistance centre for politicians,
lawyers and journalists in order to secure the legal, political and social
future of Free Software.
--> http://fsfeurope.org/

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 Alternatives to traditional copyright
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*  Copyleft
Copyleft is a general method for making a program free software and
requiring all modified and extended versions of the program to be free
software as well.
--> http://www.gnu.org/copyleft/copyleft.html

*  GNU General Public License
Copyleft is a general concept; there are many ways to fill in the details.
In the GNU Project, the specific distribution terms used are contained in
the GNU General Public License (GNU GPL). The GNU GPL is intended to
guarantee developer's freedom to share and change free software, to make
sure the software is free for all its users. The GPL applies to most of the
Free Software Foundation's software and to any other program whose authors
commit to using it.
--> http://www.gnu.org/copyleft/gpl.html

*  Creative Commons (CC)
CC offers a flexible range of protections and freedoms for authors and
artists. Built upon the "all rights reserved" of traditional copyright CC
has created a voluntary "some rights reserved" copyright.
--> http://creativecommons.org/

*  BSD Licence
The BSD license was initially created in 1979 for the distribution of BSD
system, the first free/open version of Unix. It was created by the
University of California at Berkley.
--> http://www.freebsd.org/copyright/license.html

*  Labyrinth of Software Freedom (BSD vs GPL and social aspects of free
licensing debate)
Nikolai Bezroukov
The author compares the BSDL and GPL, and claims that "each license behaves
differently, often unpredictably for everybody including their creators, and
each provides a different set of advantages and drawbacks, depending of the
stage of the lifecycle of the software project".
--> http://www.softpanorama.org/Copyright/License_classification/index.shtml

*  OpenContent License (OPL)
This document outlines the principles underlying the OpenContent (OC)
movement and may be redistributed provided it remains unaltered. For legal
purposes, this document is the license under which OpenContent is made
available for use.
--> http://www.opencontent.org/opl.shtml

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 Non-profit organizations involved
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*  Free Software Foundation (FSF)
FSF's mission is to preserve, protect and promote the freedom to use, study,
copy, modify, and redistribute computer software, and to defend the rights
of Free Software users.
--> http://www.fsf.org/

*  Association for Progressive Communications (APC) - Internet Rights
Area dedicated to the Internet and ICTs for Social Justice and Development.
Includes a section on Free and Open Source Software.
--> http://www.apc.org/english/news/os_index.shtml

* Electronic Frontier Foundation (EFF)
Based in San Francisco, USA, EFF is a donor-supported membership
organization working to protect fundamental rights regardless of technology;
to educate the press, policymakers and the general public about civil
liberties issues related to technology; and to act as a defender of those
liberties.
--> http://www.eff.org/IP/

*  Open Source Software Educational Society
Large source of information about the Open Source initiative, includes links
to the sites of the main players.
--> http://www.softpanorama.org/index.shtml

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 The World Intellectual Property Organization (WIPO)
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*  World Intellectual Property Organization (WIPO)
With headquarters in Geneva, Switzerland, WIPO is one of the 16 specialized
agencies of the United Nations system of organizations. It administers 23
international treaties dealing with different aspects of intellectual
property protection.
--> http://www.wipo.int/

*  Intellectual Property on the Internet: A Survey of Issues
Source: WIPO
Report that addresses the far-reaching impact that digital technologies -in
particular, the Internet- have had on intellectual property (IP) and the
international IP system.
--> http://www.wipo.int/copyright/ecommerce/en/ip_survey/ip_survey.html

*  WIPO Development Agenda
Source: Choike
In this report we include information on the Development Agenda proposal,
the WIPO General Assembly's resolution about it and the reactions by civil
society, scientists and other individuals around the world.
--> http://www.choike.org/nuevo_eng/informes/2313.html

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 The World Trade Organization (WTO)
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*  World Trade Organization (WTO)
World Trade Organization (WTO)
Source: Choike
In line with the final accords of the Uruguay Round of the GATT (General
Agreement on Tariffs and Trade), the World Trade Organization (WTO) began
operating on 1 January 1995. This report provides in-depth information about
the organization and its policies.
--> http://www.choike.org/nuevo_eng/informes/385.html

* Trade-related Aspects of Intellectual Property Rights (TRIPs)
Source: WTO
TRIPs material. Includes information on Intellectual Property, news and
official records of the activities of the TRIPs Council.
--> http://www.wto.org/english/tratop_e/trips_e/trips_e.htm

*  Implementing TRIPs in developing countries
Source: Third World Network
Carlos Correa
With the advent of the WTO TRIPs Agreement, developing country members have
been forced to radically reform their intellectual property rights regimes.
In the event of a future revision of the TRIPs Agreement, developing
countries are advised to be well-prepared and fully exercise their
bargaining powers to neutralize any attempts to further strengthen the
current level of protection under the Agreement.
--> http://www.twnside.org.sg/title/ment-cn.htm

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 Other UN agencies
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*  UNCTAD: Open Source Software key to bridging digital divide
Source: UNCTAD
The UN Conference on Trade and Development (UNCTAD) published its 228-pages
"E-Commerce and Development Report 2003" on 20 November 2003. One of the
messages of the report is that the use of free and open-source software
offers many benefits to developing countries and can be "a means of bridging
the digital divide".
--> http://r0.unctad.org/ecommerce/docs/edr03_en/ecdr03.pdf

*  UNHCHR: Intellectual property rights and human rights
The UN Sub-Commission on the Promotion and Protection of Human Rights has
issued resolution 2000/7, on human rights and intellectual property,
stressing the need to better integrate a broad variety of interests and to
rebalance economic and social interest.
-->
http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/c462b62cf8a07b13c12569700046704e?Opendocument

*  UNESCO Free Software Portal
The UNESCO Free Software Portal gives access to documents and websites which
are references for the Free Software/Open Source Technology movement. It is
also a gateway to resources related to Free Software.
-->
http://portal.unesco.org/ci/en/ev.php-URL_ID=12034&URL_DO=DO_TOPIC&URL_SECTION=201.html

*  UNESCO: Copyright Bulletin
The UNESCO Copyright Bulletin aims to provide regular information on legal
developments in the field of copyright and to contribute to the debate in
this area. The English, French, Chinese, Russian and Spanish versions of the
Bulletin are published as a free on-line journal.
-->
http://portal.unesco.org/culture/en/ev.php-URL_ID=5130&URL_DO=DO_TOPIC&URL_SECTION=201.html

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 WSIS-related information
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*  Civil Society Declaration to the World Summit on the Information Society
(WSIS)
"Governments should promote the use of Free Software in schools and higher
education and in public administration. The UN should carry out a
fundamental review of the impact on poverty and human rights of current
arrangements for recognition and governance of monopolised knowledge and
information, including the work of WIPO and the functioning of the TRIPS
agreement. Efforts should be made to ensure that limited intellectual
monopolies stimulate innovation and reward initiative, rather than keeping
knowledge in private hands until it is of little use to society.[...]". PDF
format.
-->
http://www.wsis2005.org/wsis/documents/summit/WSIS-CS-Decl-25-2-04-en.pdf

*  WSIS Civil Society Working Group on Patents, Copyrights and Trademarks
(PCT)
Website of the thematic Working Group (WG) dealing with PCT and related
issues, within the framework of the World Summit on the Information Society
(WSIS).
--> http://www.wsis-pct.org/

*  Upstairs, downstairs: A perspective of the WSIS
Evan Leibovitch
"From the perspective of those advocating the use of Free and Open Source
Software (FOSS), the WSIS process certainly was not encouraging. Official
documents barely mentioned FOSS at all, burying its mention in a bland
paragraph about "increasing awareness" of various software models. Earlier
drafts that had recommended supporting or encouraging FOSS were gutted due
to pressure from proprietary software defenders such as the International
Chamber of Commerce (ICC)." Linux World
--> http://www.linuxworld.com/story/39197.htm

*  Infopaper for the World Summit on the Information Society (WSIS)
World-Information.Org has produced an infopaper on "Intellectual Property"
issues largely absent from the WSIS agenda. The paper features 18 authors
who discuss different aspects of the IP with regard to their ambivalent role
in the building of a just information order: How can the information commons
be preserved in view of advancing IP regimes that benefit large corporations
and lock the former third world into a state of underdevelopment? How can
open access systems contribute to an open science environment and to free
cultural production? Why are software patents problematic?
--> http://world-information.org/wio/readme/992021819/1071762533

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 Related Choike's in-depth reports
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* World Summit on the Information Society (WSIS)
--> http://www.choike.org/nuevo_eng/informes/703.html

* The right to communicate
--> http://www.choike.org/nuevo_eng/informes/1215.html

* GATS - Trade in Services
--> http://www.choike.org/nuevo_eng/informes/1169.html

* World Trade Organization - WTO
--> http://www.choike.org/nuevo_eng/informes/385.html

* Patents and medicines
--> http://www.choike.org/nuevo_eng/informes/72.html

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- "WSIS Papers" and "Choike" are projects of the
Instituto del Tercer Mundo (ITeM) -  Third World Institute

- "WSIS Papers" is supported by the
International Development Research Centre (IDRC) / PanAmericas
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