News

Yesterday, after a three-year struggle, the European Parliament rejected the draft Directive on the patentability of computer-implemented inventions (aka software patent directive), 648 to 14, apparently the most decisive majority vote in the history of the Parliament.

The political battle behind the directive had largely crystallized into a David and Goliath fight, with SMEs, open source advocates, and small software developers opposing large software companies and technology groups. Both campaigners based their position on the same argument : that the Directive, respectively its absence, would have stifled innovation.

For the proponents of the Directive, its absence would have stifled innovation by reducing the profit on investment drawn from software innovations, consequently reducing the incentive to create new software.

For its opponents, creativity always builds on existing ideas, which, if over-protected, can no longer sufficiently be remixed and elaborated on, thus reducing the very building material innovators need.

It should be reminded that over 30 000 software patents have been registered with the European Patent Office, which cover such basic concepts for software development as the progress bar, the MP3 and JPG format, “paying on a network with a credit card”, “the online shopping cart”, and many, many others. These patents cannot currently be enforced, but the Directive would have gone a fair way towards allowing such enforcement. It is easy to understand that a huge number of software innovations would have had a very hard time not to trample upon this minefield of patents.

It should also be said that the frequent talk about intellectual property being “dead” in cyberspace, spawn by the early libertarian ideology of cyberspace devotees, by the early common belief that the Internet has a innate ability to resist control, and by the more recent blows given to the music and film industry by file-swappers, has lately largely given way to the opposite concern : digital works are overprotected. Technology, indeed, allows to protect any work in digital form, be it legally protected by IP laws or not, irrespective of the fact that a specific use may fall under one of the many exceptions to the legal protection provided by the legal framework. The patent Directive would have been a further step in this direction.

Reproduction autorisée avec indication de la source :
Thomas Schultz, www.unige.ch/ceje, actualité n°: 241 du 12 juillet 2005.