TRIPS, WIPO and the WTO doing the right thing on software patents?

Patents: The pro-software-patent lobby has frequently stated that TRIPS — the Treaty on Trade Related Aspects of Intellectual Property Rights (TRIPs), signed on 1993-12-15 as a constituting document of the World Trade Organisation (WTO) — requires that software be patentable. For example, here’s one from the International Chamber of Commerce:

ICC believes that the directive should follow current practice in the EPO and a number of EU member states and make it clear that computer program products can be claimed. To disallow such claims in the directive would create great legal uncertainty for holders of such patents already granted. Prohibiting product claims would also render enforcement of patents difficult and raise questions with respect to TRIPS compliance. TRIPS requires patents not only to be available, but also to be ‘enjoyable’ in all areas of technology.

Well, it actually appears that the treaty may state exactly the opposite! Christian Beauprez, a UK-based consultant, has taken a closer look at the details, and come up with this:

TRIPS Article 10.1, ‘Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).’

WIPO Copyright Treaty Article 4, ‘Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression’.

This includes the execution or processing of a program, as demonstrated in the EEC software copyright Directive 1991, ‘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’

They also stipulate that exceptions to exclusive rights of authors are to be limited to ‘special cases’ which do not conflict with a normal exploitation of the work and cannot be prejudicial to the author’s rights. (e.g. the rights to sell,rent,broadcast,give away,translate, and generally enjoy.).

… Authors cannot own underlying ideas, but inventors can as part of their ‘invention’. When the field of software (aka data processing) is opened up to ‘inventors’, they can block authors from exploiting their works on the grounds that they own the ‘underlying ideas’. Therefore this is prejudicial to the rights of authors and illegal under all these Treaties.

There’s lots more at Christian’s site. FFII, one of the main anti-software-patenting players in Europe, have agreed that this is a key point in their TRIPS analysis:

In summary it can be said that the European patent establishment is 1. refusing to clarify and concretise the meaning of the TRIPs treaty; 2. wrongly equating the TRIPs treaty with ‘US practise’, using threats of alleged TRIPs-incompatibility for purposes of fostering Fear, Uncertainty and Distrust (FUD); 3. trying to impose a sui generis software patent regime on Europe which is incompatible with the TRIPs treaty.

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