Stopping the patent madness


The BBC’s lead story in Britain today is about a decision of a US court which no direct or immediate applicability in Britain at all – over Apple’s victory over Samsung in a US patent case.

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.

English: United States Patent Cover from a rea...

English: United States Patent Cover from a real patent issued (Photo credit: Wikipedia)

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.

9 thoughts on “Stopping the patent madness

  1. > stealing property from consumers by retrospectively increasing the copyright protection

    Does that mean that if we lower the copyright back down to 50 years that new works would be stolen from the copyright owners? Personally, I say not, as the copyright ownership is a privilege granted by the public and its appointed sovereign in lieu of eminent or public domain. It has the same standing as a driver’s license. – privilege (i.e., granted right) rather than as an inalienable right (to borrow an uncopyrighted phrase :=) ).

    I also believe a copyright should be lower: somewhere between 15 and 25 years. That’s plenty of time to get paid. Remember, royalties are without further work like a retirement pension. Even CEO’s of big corporations work every day for their pay (theoretically, of course). Living in society benefits the individual by making available to him expertise from others in the society and production economies of scale which make his life less work and more fun overall. In return, it seems fair that the individual might wish to give back, making the benefit to himself and all others in society even better and better as the years progress. Putting in our 40 year career is one way to do so. We do not want our copyright owners to get the message that their continued creative productivity is unneeded or that their career should be shorter than average.

    One other point concerning the right of copyright owners to get paid. In one philosophy, the owner of the content and storage facility in our heads is ourselves. Creative works are intended to reach into the mind and, as a consequence, take up residency in the mind’s memory. Should not the content providers compensate me for the space inside my head that they take up? In general, people do not get paid for such things as it is considered an easement of sorts that is given by my consent by allowing my body in a public arena where such influx into my brain may occur. When content is broadcast publicly in public atmosphere and airwaves, is not the same kind of easement provided by the content provider, just on the opposite side of the exchange?

    Getting back to the previous point. It seems to me that maybe a content provider should be paid for his content creation (if he is an employee or hired gun or independent creator) and a creator/performer should be paid for continued performances (paying himself for his own self-generated content out of such earnings, as it were, and also paying another who might have created content he is using in his act). This concept encourages the idea mentioned above of a career in a creative field, rather than a quick and premature retirement.

    • Further food for thought:

      Non-live broadcasts and recordings of content could be arguably considered to be a commercial advertisement to see any live performance which makes use of such content. Duplication and dissemination of commercials is considered a service, and not a copyright violation. Except for one’s good-will that waives such rights, one should be paid for passing such commercial messages on to a friend or experiencing it himself. In this philosophy, if one downloads or experiences content that can be said to as a commercial, he should not be made to pay, and pay should be for live performances, not recordings.

      • Correction to last sentence above:
        In this philosophy, if one downloads or experiences content that can be said to *act* as a commercial, he should not be made to pay, and pay should be for live performances, not recordings.

  2. > 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!).

    For those in the field, it is readily apparent that math is an invention of man. It is true, however, that the potential for its invention, as with any other, has always existed based on the governing laws of the universe and, by extension, the laws that govern the mechanisms and existence of the thinking brain. Any system of axioms created is the definition of a context and the establishment of a new mathematical terrain which has an extensive landscape to be explored. But the system of axioms is an invention, to be sure.

    Even if it could be argued that math is a discovery of what already exists and not invention, we can all agree that work should be paid for. The process of discovering previously unknown mathematical processes and algorithms is a tedious one and workers should be paid. The model for such compensation is the real issue here.

    It is somehow related to what defines a public good and how those who create public goods may be paid by the public (or their sovereign) to allow unlimited and freely available public access to the public good. Think, for example, of a public library or maybe a research grant to develop new ideas such as math algorithms :=) that lead to the advancement of public knowledge. On the other side is private goods where compensation and access is arranged by private agreement.

    • Thanks very much for your comments, which certainly show you have thought seriously about these issues. But I do have to take you up on the view that:
      “For those in the field, it is readily apparent that math is an invention of man.”
      That is certainly not the view of mathematical realists, and they include some very distinguished mathematicians. For them maths is a discoverable system that exists independently of the human mind.

      On the payment issue – there are no European software patents (though some EU member states may issue them) and in general the European attitude is similar to that of the UK: that no purely mathematical invention may be patented. I have never seen this raised as a reason not to make or sell software or software controlled devices in the UK.

  3. Of course the US court ruling affect the rest of the world, including the UK. Samsung doesn’t design phones for each market separately.

    Copyright extension in a variety of ways seems to be all too frequent.

    Here in Canada, term extension is likely to be the outcome of a free trade agreement with the EU.

    Protecting DRM is a massive extension of copyright. In Canada, we now may not break DRM for any reason, even for otherwise authorized uses. DRM gives fine-grain control over works to publishers in ways never before seen in copyright. Even calling it copyright is a travesty.

    • Of course the ruling has affect, but no effect here. There is no legal reason for Samsung to stop selling its phones in the EU – which is the biggest market in the world. My criticism of the BBC is that none of this was elaborated upon in any of the reports I read or heard – and as they are UK based that is pretty poor!

  4. I agree entirely with your sentiments. Regarding the Apple court victory, my impression (based on early reporting of the case) is that one or more of the patents had to do with form factor – the hardware analog, I suppose, to “look and feel” copyrights, which we have had in the US for a while. I have a sneaking suspicion that Apple just successfully patented the rectangular parallelopiped (or at least the rounded-corner extension of it). Anybody know if the pharaohs patented the pyramid, or is that still up for grabs?

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