The fact that the case, at least in theory, matters not a jot to Britain seems to have rather passed the BBC by. It is not even the case that Samsung’s behaviour is likely to impact on how European regulators might see the company, as the plain fact is that software patents have no legal standing in European lawand in Britain it is unlawful to grant a patent based on a mathematical procedure, which is what an algorithm (a software procedure) is.
The basis of the British law seems sound to me. No one makes an invention when they discover a new mathematical procedure – the maths is universal and has always existed (I know that there are philosophical arguments to the contrary, but I’m not buying them!).
But thanks to the BBC Apple have now won half the battle in the UK – many consumers will now think a Samsung product tainted or perhaps even illegal, thanks to some pretty poor journalism.
Yet there is an even deeper threat. Politicians, of all parties, in the UK are subject to some heavy-duty lobbying and pressure from “rights holders” in all fields to extend and deepen the patent and copyright regime. The problem is not one of corruption – politicians, in my experience at least, are not being paid or even offered money to advocate this position.
Instead, with the economy weak, they are being told that extending patent and copyright is the best way to protect jobs and build exports. It’s garbage, frankly: the best way to protect jobs and extend exports is to innovate and create, not to rely on rent from past creations – but it is being listened to.
Already this year European governments and legislators sanctioned stealing property from consumers by retrospectively increasing the copyright protection period on performances. Items which had entered the public domain were simply stolen back from the public – hardly as outrageous as the Enclosures Acts, but exactly the same principle with the state acting to unilaterally enhance the financial health of the largely already wealthy.
From my time working in government and for the Labour Party in government I know this was a long term aim of the music industry and that Labour ministers who ought to have known better were seduced by the argument that as Britain had been such a pioneer in the global popular music industry it was in the ‘national interest’ to legislate in this way. The alternative argument – that it was in the national interest to encourage innovative ways to use works created half a century ago – was dismissed out of hand: having had their hands badly burnt when the dot com bubble burst ministers were not keen to listen to another bunch of ‘new economy’ arguments. The current government seems similarly bewitched.
But there is a deeper argument here too. Copyright and similar protections (such as patents) are privileges granted by the state to encourage innovation for the benefit of the public. There is no ‘natural’ basis for copyright – if I perform something in public I should expect people to copy it. But because such copying might discourage me from subsequent public performances I am granted a special legal and time-limited protection. The law exists not to benefit me, but to encourage me to act in a way that benefits the public. Extending copyright protection from 50 to 75 years has no such public benefit – it merely benefits the copyright holder, and it is simply not credible to suggest that there will be new works created today because protection has been extended that would not have been created because previousl protection only lasted 50 years.
So too with patents. These should exist to encourage genuine invention (ie., not to privilege the discoverers of that which already exists) in such a way that benefits the public. If patent law allows one company to establish a monopoly on a vital technology then it is time to rethink it all.
- The Design of Design Patents: What Every Designer Should Know About Protecting Your Work (core77.com)
- Demystifying Intellectual Property: Understanding Copyrights & Patents (blogs.lawyers.com)
- Disaster for Samsung: Jury awards Apple billions in patent case (gigaom.com)
- What Does Apple’s Patent Trial Victory Over Samsung Mean To You? Nothing. (forbes.com)
- How Patents Work (undisputedlegal.wordpress.com)
- Both Apple and Samsung Found Guilty of Patent Infringement by South Korean Court (forbes.com)