[Fsfe-uk] Draft PR on swpat directive

[Alex Hudson]

Hi everyone.

I think we're now roughly all up-to-speed with what happened at the
European Parliament last week wrt to swpat. If not, here are a few
useful links:

http://lists.ffii.org/archive/mails/news/2003/Sep/0014.html
                                                               (FFII PR)
http://swpat.ffii.org/papers/eubsa-swpat0202/plen0309/index.en.html
                                         (Amendment list and discussion)

I think it is now time for AFFS to make some statement on this issue. We
have already been contacted by one major UK broadsheet newspaper who are
interested in the story, and hopefully with proper PR we can get some
others interested too. To this end, I've put together a rough draft of
what I think we should be saying - I would be very grateful if people
could give some feedback.

The outline is basically aligned with that of the FFII, although
obviously we are only concerned with Free Software. There is one
amendment that I have neglected to mention directly, that was defeated:
the amendment that would have excluded Free Software from any kind of
patent infringement. Personally, I'm not really 100% I liked the
amendment (the idea of patent infringement being at least partially
controlled by the copyright licence of a piece of software seems bizarre
at best, and doesn't help separate the issues within intellectual
property - it would actually make it worse), but the actualite is that
it would have made the directive 100% fine for Free Software. So, I'm in
two minds of what position we should take wrt to that amendment. I'm not
even sure the amendment could ever be implementable, so bemoaning it at
any length is probably a very bad idea. But, should we say anything?

Another piece of self-censorship (almost ;) is that I've deliberately
not made any statements about this being a turn-around of the directive,
or similar. I'm not sure we want people to be able to levy that argument
against the directive - that it goes too far (McCarthy has already
suggested this). The "spin" (I guess that's what it is..) is that the
tightening of the various definitions makes this directive workable and
non-damaging, as opposed to being some kind of radical departure. I
think that's actually fairly close to the truth, too :o)

Now, the FSFE have not made any statement about the directive, and I'm
not really aware of what they think of it, but I have read through most
of what the FFII and others have said, and I think I have covered at
least all the major weak points of the directive. If anyone else has any
concerns with the directive, or thinks the tone should be different, I
would be very interested in hearing about that - so far, there hasn't
really been much coverage and so knowing what other people think isn't
really possible at the moment. But, the directive does look pretty safe
- I can't see any really difficult problems in this form.

Thoughts, opinions, amendments and rewrites welcome ;)

Cheers,

Alex.

                                                     DRAFT PRESS RELEASE


AFFS POSITION ON THE DIRECTIVE ON THE PATENTABILITY OF
COMPUTER-IMPLEMENTED INVENTIONS

London, England, September 27 2003: Not for release

ON THE 24th SEPTEMBER THE EUROPEAN PARLIAMENT voted on this Software
Patent Directive, intended to confirm the intent of Article 52 of the
European Patent Convention (EPC) and replace the existing ad-hoc
practice of the European Patent Office (EPO). During this process, the
Association For Free Software has taken a great deal of interest to
ensure that the users and developers of Free Software are not damaged by
any directive which could align practice with that of the US or Japan,
and that Europe continues to be well-placed as a centre of innovation
within the Free Software world.

The AFFS has continued to warn of the dangers of a bad patent law
covering software since its inception, since the treatment of software
as “technology” has many ramifications which many do not immediately
understand, but which has been shown by the US experience particularly.
Software patents also open doors to patents on pure mathematics,
business methods and other algorithm-based subjects.

Also, the AFFS has been worried by the amount of lobbying that has taken
place on behalf of big business, attempting to paint software patents in
a light that is business-friendly. We are thankful, therefore, of the
thorough and professional efforts of the Foundation for a Free
Information Infrastructure (FFII), whose tireless work has been
invaluable in this area. The work of the FFII and others has raised the
profile of this important issue, and we have been heartened to see that
organisations that are not usually associated with the computing field
have also made their position known, especially businesses and those
representing businesses who have spoken up and destroyed the myth that
pure software patent laws are desired by business and required to
continue innovation.

The Directive, as it stands, does not contain many of the problems we
had feared it might, and indeed is vastly improved on the original
drafts we have seen earlier. This is due to the number of excellent
amendments that were tabled, voted on and passed. In particular, the
whole Directive is hung on the definition of “technical effect” - that
patents on software would be limited to that which is technical. Many of
these amendments define in much greater detail what is technical, rather
than leaving it to wooly phrases such as “that which goes beyond the
normal interaction between computer and program”. Pure software patents
have been completely ruled out, and the amendments make clear that a
technical effect can not be found something which processes data, for
example. This kind of tight definition is exactly what is required by a
new directive, to ensure real legal clarity over what is allowed and
what is not.

We are also extremely pleased to note two other limitations in
particular. Firstly, a confirmation on the meaning of the term
“industrial”: as patents must be susceptible of industrial application,
this requirement could have easily been bypassed with skillful wording
had this new directive been sufficiently weak. This is not the case – it
is now clear that industry pertains to the automation of manufacture,
and cannot be conflated (as many do) to business in general.

The second explicit limitation that we are pleased to see is that
interoperation of software is again guaranteed by this directive. The
possibility of companies using patents on file formats and other
input/output presented a very real danger: that patents might be misused
to reinforce a position of power within a market, preventing new
competitors from entering and allowing existing competitors to be easily
damaged. The right of software authors to write software to interoperate
with other software has long been explictly uphead in European law, and
the reconfirmation of this is extremely good news for authors and users
alike.

It is to early to call this a victory against the concept of pure
software patents though; there is still much work to do. This directive
has a number of stages to pass – including a second reading at the
European Parliament – before it actually becomes law. There are many
reasons why this directive is good for Free Software, so we must now
raise our voices to support this directive in it's passage.

Also, there is still work remaining to do on the directive. There are a
number of clauses which either do not make sense, or are not positive
for Free Software. We need to ensure, then, that our politicians are
aware of these problems and know what modifications we need. In
particular, there is still a potential loophole which would allow
algorithms to be patented. However, it is now a process of refinement
rather than addition, so it is highly unlikely that any new amendment
could be tabled which would further weaken the directive.


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