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New EU patent activity, and TRIPS says software is a ‘literary work’?

Patents: FFII: Conferences and ‘Patent Riots’ in Brussels 2004-04-14
: ‘The Foundation for a Free Information Infrastructure (FFII) calls on its 50.000 European supporters and on 300.000 petition signatories, including more than 2000 CEOs of European software companies, to take to the streets in Brussels on April 14 and in national capitals around 1st of May, and to temporarily block access to their websites, in protest against new moves by the EU Council and Commission to legalise patents on computerised calculation rules and business methods’.

Last year, the European Parliament voted to exclude software and business methods from patentability. Now, it appears the EU Council is secretly planning to push that through regardless — so FFII are planning another round of protest for 2004-04-14.

In other news — the European Patent Office and other pro-patent bodies have always insisted that the WTO Trade-Related Intellectual Property (TRIPS) treaty required that software be patentable. However, this poster thinks not:

Article 10 of said treaty clearly states: a.. ‘Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).’

This is the strange thing you see, the statement doesn’t seem to mean that much on first glance. It is only when reading it closely that one realises that it does not simply say that ‘computer programs are automatically copyrighted under the Berne Convention’, it specifies they ‘shall be protected as literary works’.

Literary works cannot be patented because they are not inventions. Indeed if literary works could be patented one would have to concede that books, screenplays, and music could be patented as well although according to my research there is no provision for this in law. We would also have to apply patent laws to these areas since we are not allowed, apparently under article 5 to restrict on the basis of the field of technology.

On reflection, it’s actually a very interesting comparison. Like literary works, it’s not the idea of what software does (the plot summary) that makes it valuable, it’s all the fiddly details of its implementation (the full story). Hmm! Maybe TRIPS got that right after all…

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