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On Tue, 2007-02-20 at 08:00 +0000, Neil Stone wrote:
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> http://www.number-10.gov.uk/output/Page11020.asp
Here are a couple of extracts - on software and IP and on DRM. Are they
strong enough?
4.114 There have been calls in the UK to introduce pure computer
software patents to
ensure that innovation is properly protected and encouraged. In Europe,
patents are not
granted for computer programs as such,87 but patents have been granted
to computer-based
innovations provided they have a technical effect. In the USA, pure
computer software
patents can be granted. The evidence on the success of pure computer
software patents is
mixed. The software industry in the USA grew exponentially without pure
software patents,
suggesting they are not necessary to promote innovation.88 The evidence
suggests software
patents are used strategically; that is, to prevent competitors from
developing in a similar
field, rather than to incentivise innovation.
4.115 In addition to the concerns that increased protection does not
increase incentives,
some have commented that pure software patents do not meet the criteria
for patentability.
The most profound problem with using patent law to protect software is
that innovation in
the field is usually accomplished in increments too small to be viewed
as inventive steps.89
Several submissions to the Call for Evidence, for example the
Professional Contractors
Group’s submission, argued that software should not be patentable in
principle. Where
freelance businesses develop software, they rely on copyright to protect
it. This protection is
free and automatic. The copying of as little as 1.7 per cent of a
program’s code has in the past
been found to be infringement of copyright.90
4.116 Introducing pure software patents could raise the costs for
small software developers
to mitigate against risks surrounding R&D, thereby inflating the capital
needs of software
development. Sun Microsystems argued that without exceptions that
allowed for reverse
engineering for interoperability, pure software patents could stifle
competition.
4.117 Last year, the European Parliament rejected the Computer
Implemented Inventions
Directive, but this issue has been raised again. The economic evidence
suggests that such
patents have done little to raise incentives to innovate, and other
evidence suggests that the
introduction of such patents will have a chilling effect on innovation.
In the absence of such
evidence, a new right for pure software patents should not be
introduced, and so the scope of
patentability should not be extended to cover computer programs as such.
The Gowers Review
4 INSTRUMENTS
The USA is out of 4.118 The Review is concerned that business method
patents fail to meet the criteria for
step with Europe patentability; namely that inventions are non-obvious
and novel. In Europe, business
on business methods are not patentable as such, while in the USA
business models are patentable.91
method patents
4.119 There is some evidence from the USA that patents
on business methods are not
necessary for incentivising innovation, and that the
costs to develop business methods are
low and therefore the products ought not to qualify
for a full term of patent protection. There
are additional practical concerns with increasing
business method patents. In a 2001
consultation, the Patent Office reported that SMEs
were particularly concerned about
business method patents potentially increasing the
regulatory burden.
On DRM
Box 4.8: Issues with DRM technology
1. Technical protections can enable restrictions
that go beyond protecting content to
price discrimination in different EU markets:
• for example Apple iTunes charges 79p in
the UK and 68p in the EU for a single
music track, without the possibility of
arbitrage.
2. DRMs can prevent uses permitted under fair
dealing exceptions, and DRM tools do not
necessarily expire when copyright expires:
• the Adobe eBook reader gives authors the
ability to prevent readers from
electronically copying an insubstantial
part of text – despite such copying not being
a copyright infringement; and
• the British Library’s submission to the
Call for Evidence noted that the great
majority of agreements relating to
electronic licences undermined exceptions
provided for in UK and international
copyright law.
3. DRMs can damage users’ computers and can put
limits on what users can and can’t do
with the products:
• some DRMs load up proprietary software
or devices which may harm users’
computers or necessitate upgrades. In
2005 one record company was threatened
with legal action over anti-piracy
protection on CDs that automatically installed
‘rootkit’ software that could damage
hard drives and violated users’ privacy; and
• some CDs will only play on two devices
before locking.
DRM trumps 4.104 DRMs can prevent activities permitted under the
exceptions. For example, the Royal
copyright law National Institute for the Blind (RNIB) note that Adobe
eBooks usually have ‘accessibility’
settings disabled. This prevents the visually impaired
exercising their rights to make copies in
accordance with the exceptions introduced by the
Copyright (Visually Impaired Persons) Act
2002.85 Such exceptions ought to be respected by
technology.
4.105 The Information Society Directive
recognises that DRMs may be used to prevent
legitimate copying and Article 6(4) requires Member
States to ensure that technical measures
do not preclude a person from benefiting from certain
copyright exceptions. This obligation
has been implemented in UK law.86 If a person cannot
exercise a permitted right due to a
DRM, they must issue a ‘notice of complaint’ to the
Secretary of State, who can then issue
directions on how to ensure that the permitted act can
be performed. As yet, no-one has filed
a complete notice of complaint, yet both the Consumer
Project on Technology (CPT), an IP
research body, and the RNIB told the APIG committee
that this process is “slow and
cumbersome”.
Improve notice of 4.106 The Review recommends that the procedures in
place for circumventing DRM to
complaint allow copying for uses deemed legitimate under
copyright exceptions ought to be made
procedures easier, for example through a model email form available
on the Patent Office website.
Recommendation 15: Make it easier for users to file
notice of complaints procedures
relating to Digital Rights Management tools by
providing an accessible web interface on
the Patent Office website by 2008.
4 INSTRUMENTS
4.107 DRMs can be legitimately employed, and where they are
they should be robust. The
Review believes there is a need for clearer guidance on DRM
for users, and encourages the
DTI to work with industry looking into labelling media. In
the event that companies use
DRMs to create market power, damage users’ software or invade
their privacy, the Review
recommends that the Office of Fair Trading undertakes
investigations. The Review also
supports the DTI investigation into the EU single market, but
notes that the key example of
DRM being used to segregate markets, namely differential
pricing on iTunes, may be a result
of negotiations with collecting societies in varying
countries and not simply an issue arising
from the use of technical protection measures.
4.108 The Review will make further recommendations on the
way policy is formulated in
the Chapter 6 and notes that any future policy formulated on
DRM ought to be consulted on
widely, with the views of all stakeholders, including
consumers, libraries and creators, taken
into consideration.
Recommendation 16: DTI should investigate the possibility
of providing consumer
guidance on DRM systems through a labelling convention
without imposing unnecessary
regulatory burdens.
james kilty
http://www.kilty.demon.co.uk
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