[ Article transferred from my old wiki ]
While the Anti-Counterfeiting Trade Agreement (ACTA) was finally rejected by the European Parliament on July 4th 2012 as first major victory of democracy since the rejection of software patents directive seven years ago, I still hear people eulogizing Intellectual Property (IP) as “fostering innovation”. Time to clarify the situation and stop with this Mickey Mouse fantasy.
First of all, what are we talking about.. ? Discussing some months ago with an IP Lawyer I discovered with much surprise that the issue of Intellectual Property in the digital environment was covering for him topics that had never come to my mind such as the qualification into legal terms of Facebook status. Frankly, does anybody care about this ? Apparently YES – he does. Inversely, the issues that I was, as for myself, referring to such as, hmmm, e.g. the opportunity of software patents, was for him absolutely small-beer ; insignificant.
The true thing is, the expression Intellectual Property covers so many subjects that it is quite difficult to talk about it in general terms, to affirm that it is whether good or bad, or to try to have global legislation over it. This is why wide scope agreements such as ACTA
do not make sense. This is why, also, Richard Stallman, Founder of the Free Software Foundation, vehemently deplores the use of the expression, which is for him a “seductive mirage” at most.
1. Understanding the antinomy
Globally speaking, Intellectual Property Rights (IPR) refers to exclusive rights related to a wide range of creative works – initial meaning – but also various forms of information, data, knowledge – which is where, as you can guess, the problems start.
Its two main branches appeared in the 1440’s with the invention of the printing press by Johannes Gensfleisch “Gutenberg”, which raised the issue of the rights attached to industrial works on one hand, regarding who was entitled to benefit from the invention, ie. the machine’s revenues ; literary and artistic works on the other hand, as for the multiple “copies” of a single document that were then printed, ie. “copyright”.
Gathering both areas under the same denomination is nevertheless quite recent as it only came in late XIX’s century with the creation of the United International Bureaux for Intellectual Property (BIRDI), replaced in 1967 by the World Intellectual Property Organisation (WIPO). The Bureaux were set up to ensure the application of the two oldest IP conventions still in force : the 1883 Paris Convention on Industrial Property – inventions and trademarks – and the 1886 Bern Convention on Literary and Artistic Works.
Until here, no big deal. IPR appeared to encourage creativity through the legal protection of rights holders – although (!) the latters were not necessary neither the inventor nor the author but rather the business men they were surrounded by.
The actual problems came later on. When well established corporations started seeing Intellectual Property as a magical bubble to take control over the whole market and as side effect, our everyday life – yes, this is that simple. But let’s stick to the innovation’s challenge.
Innovation is about taking something as it is and introducing a new element that somehow, will make the difference in a positive way. It is about “improving” the existing – on the contrary to pure inventions which are supposed to entirely come from their creator’s imagination, e.g. the wheel.
As a consequence, it is essential for innovators to be entitled to use what already exists or else, there would be no way to innovation. This is the reason why a healthy competition matters so much ; the reason why exclusive rights – such as IPR – should be handled very, very cautiously.. Being simply at the opposite of the innovation’s concept !
Whereas nobody contests the necessity of legally protecting anyone’s works from abusive uses of anyone else who would make profit of it without counterpart to its author – which was the healthy basis on which were built both Copyright and Patent Law – a balance between right holders and their competitors is * vital * considering our future.
2. Pointing out the breaks in Europe
Unfortunately, European IP systems do not respect this balance but once again, let’s try to remain specific, and stay focussed on Copyright and Patent policies relevant in Europe for Information and Communication Technologies (ICT). The reasoning can then be easily extended for all fields of industry, not least because their use is now hardly unavoidable whatever the sector you are working in.
» An inappropriate Patent System
I already explained in a previous post the the threats on digital innovation by the European Patent Office (EPO) who intentionally confuses hardware, potentially subject to patent protection, and software, which has no reason to be covered by any kind of patent for the simple reason that it has no technical aspect in itself.
As a reminder, patents are indeed supposed to protect inventions, themselves defined as “technical solutions to technical problems”, and not literary work, nor algorithms, which is what software is actually about ; in fact, just as musical partition, software needs an “instrument” to be played in, and might then only be subject to Copyright protection.
The dangers related to the EPO can then be briefly summarized as follow.
» The European Patent Office is a non E.U. institution auto-financed depending on the number of patents delivered ; as a consequence, the EPO has a particular advantage in delivering a maximum number of patents and thus, lowering down the quality of patents. This statement is global – not only related to ICT : everything with the EPO has the potential of becoming subject to exclusive rights, e.g. works methods, as extraordinary as it can sound. This gives you an idea of the threats currently weighing on the public domain – far beyond the innovation’s issue.
» Patents involve a bunch of costs totally disproportionate considering the software industry revenues – at least, SMEs, ie. 80% of the digital market. Among those we find deposit, renewal, licensing and last but not least, law suits costs. Not very encouraging for innovators which most of the time, do not belong to well established companies – mostly living through the re-edition of old products enjoying monopolistic position. Another reason why the latters do not innovate much is the old style work methods used to improve the products or develop new ones. SMEs are quicker and more often choose original works methods, like users community participation, that are now proving their efficiency.
» Partly due to those extraordinary costs that most of ICT companies cannot afford, non practising entities found the idea entertaining and rewarding to buy patents portfolios on every little code sequence so that any developer takes the risk to infringe one of their patents while developing the most common software. Trivial patents are not the apanage of patent trolls though ; well established companies with large finances indeed don’t hesitate either to register similar patents to kill competition – which somehow, do make sense.
For more information about the patent system visit 06072005.eu.
» Copyright Protection applied to wrong subject-matters
Whereas Copyright is, with no possible doubt, an appropriate choice to protect software – although other solutions exist and are time after time gaining success – it does not mean that every piece of code should fall under copyright protection. Just as for the present blog post which I, Alex, am the author of ; it does not mean that I have exclusive rights on criticizing Intellectual Property, nor on the words, or expressions used here. My author’s rights are neither related to the ideas conveyed, nor to the English language subtleties.. But on the article taken as a whole, as a result of my personal analysis of the situation and, unconditional element, efforts to present it as a coherent text, that nobody before me has ever produced.
Okay. Well. Despite this evidence, International and European legislation give today full Copyright protection to any piece of code included in a software, from the moment the software is coupled with digital rights management (DRM) system. It means that if anybody cracks the system to access the code for any reason – because the software does not work on his computer for example – the person is infringing the law. Just as if your car had a breakdown, and you were not allowed to fix the engine.
But let’s go back to innovation. Once again, there is no way to innovation if we cannot observe what has been done by others. That’s it. You can keep seeing hackers as bad guys.. But if we want our society to evolve towards a better future, we need to be entitled to open the hood, look at how the others have been doing, and find our own inspiration in there to propose new solutions, new models. That’s what we call innovation. That’s what free competition is about.
So of course, software shall be protected : if someone copy-past it, makes a few cosmetic changes and then sells it under a new brand, that’s counterfeiting and shall not be accepted. Also, you cannot prevent companies from adding digital systems to prevent access to their code. Fair enough. But the law should not intervene here to forbid anyone to bypass such measures, for the simple reasons that sometimes, DRM are protecting pieces of codes that have no reason to be subject to copyright ; and that anytime, the user should have the possibility to access the system so that the product fits with his needs.
Where would innovation lie, if not in observation and trying to fix what does not work ? How could we move forward, if we weren’t allowed to examine problems, and search for solutions.. ? A copyright system based on the legal protection of DRM can only be interpreted as detrimental to innovation. CQFD -_-