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Posted on 17-9-04 Threat To Digital Freedom by David Heath, OneWorld.Net, 1 September 2004
"He who receives an idea from me, receives instruction himself without
lessening mine; as he who lights his taper at mine, receives light without
darkening me."
- Thomas Jefferson
To the lay person, patents typically conjure up an image of an eccentric
scientist toiling in his garage to 'build a better mouse trap'. It is a
stereotype that advocates of strengthened patents love to promote because
it keeps the illusion going that their intention is to protect the small
inventor. But that couldn't be further from the truth.
Most software patents are held by large corporations, predominantly from
the US and Japan, according to research from the Foundation for a Free
Information Infrastructure (FFII).
These corporations, together with supportive patent offices are pushing
forward new legislation in the European Union that copies the US model of
allowing patents on 'computer implemented inventions', (i.e. computer
software).
Surprisingly, in spite of this support from government and business
institutions, there isn't a single study that concludes that software
patents are economically beneficial. Indeed, a report from the US Federal
Trade Commission expresses concerns over the damaging effects of software
patents in the US.
The support from patent offices becomes a little easier to understand when
you take into account the fact that most patent offices, including the
UK's (pdf), are funded purely from patent processing fees. So a growth in
the number of patents directly benefits them.
Described as a minefield for the software developer by Free Software guru
Richard Stallman, patents differ from copyright in that they can be
accidentally infringed. Even if a developer comes up with a patented idea
independently, he or she could still be sued for damages by the patent
owner.
The only way for an independent developer to avoid the patents 'minefield'
would be to meticulously search patent files. But that's completely
impractical. Every working day, programmers work through scores of ideas -
and a search of any one of these could take up the whole day. It's clearly
an impossible task for that solitary boffin pottering about in his garage.
Large corporations, however, can avoid this burden by 'cross licensing'
their patent portfolio with that of other companies: that is to say, by
striking a deal allowing each to use the other's patents without worry of
litigation.
The irony is that patents were originally intended to promote innovation.
But imagine if patents had been applied to the field of music. If the
twelve bar blues had been patented back in the 1900s in the US, would we
have witnessed the same melting pot of musical styles over the twentieth
century that led to rock 'n' roll? It seems unlikely. And computer
software evolves in the same way as music, with current ideas being
combined and re-combined in innovative ways.
Implications for poorer nations
What makes the issue of software patenting more vital still is the
powerfully inhibiting effect it can have on the developing world. The new
information and communication technologies (ICTs) offer important new
opportunities for economic development in poorer nations.
It is vital for these nations to access the benefits of ICTs - improved
efficiency, processes and communication - now boosting developed nations.
They also present a new export opportunity, as companies in richer nations
increasingly outsource software services to countries like India where
skilled labour is available at lower cost.
And the continuing success of Free/Libre Open Source Software (FLOSS),
like the Linux operating system, is seen by many as a practical
opportunity for developing countries to get a technological 'leg up', as
these free systems can provide a basis for infrastructure around which
services like consultancy, training, and customisation can be built.
But these promising opportunities are threatened by the expansion of EU
legislation on software patents. Its effects would not be immediate or
direct, but in the longer term acceptance of software patents in Europe
would be a key step towards a harmonised worldwide patents regime,
enforced through the World Trade Organization (WTO).
In this future world (which is only round the corner), small software
developers, in the global south as well as the north, will find themselves
faced with negotiating that patents minefield, unable to compete with the
vast patent portfolios of the global software giants.
The irony is that, during the 19th century, the US based much of its
economic development on copying technologies from Europe - deliberately
flouting the patents regime in place at the time.
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