You should learn a few things about copyright for software before telling that copyright is not sufficient for software.
Recently the claim was propagated, that copyright law only covers 1:1 copies. A letter from a MEP stated:
Copyright law covers only copying a work. Applied to software products this means, that without patent protection only a 1:1 copy could be prosecuted, but a slight rewrite of a program using a foreign idea would be allowed.
You can see from established comments to copyright law and real legal cases, that this is absolutly wrong. In Germany, Ƕ9c Urhg covers
the adaption, the arrangement and other reworking of a computer program.
According to "Schricker/Loewenheim, Urheberrecht, 2. edition 1999, Ƕ9c Rn 13" an adaption is
basically every modification of a computer programm [...]
Under Ƕ9c No 2 come for example error corrections, modifications for adjustment to custom user needs, a new user interface or to new legal, organisatoric or technic demands, program improvements, the transfer of the source program in another programming language, the compilation of the source program into the object program and reverse. [...]
Der Nachweis einer ungesetzlichen Umarbeitung ist auch nicht besonders schwierig, siehe Schricker/Loewenheim aaO, § 69c Rn 16:
In the legal practice particulary the adoption of peculiarities, which cannot be explained by contingencies or through free reimplementation, have led to the acception of a dependant work, for example of program errors [...], of redundant program commands [...], construction of program branches, subdivision of formulas as well as alignment and subdivision of subprograms und their occurence inside the main program, the choice of variable names [...]
In short: The adaption of a program is illegal and as easy as to prove the write off from a neighbour in a class test. In most cases, the source code is not available anyway to third partys, so an adaption is not possible anyway. Especially if the source code is available, rival businesses avoid to give their developers foreign source code on developing an rival program, as the risk of a unconscious transfer of peculiarities, which would be assesed as copyright violations, is too high.
Verbesserungen der Position des Urhebers wären in erster Linie im Prozessrecht möglich.
In addition, the MEP wrote:
Another difference is that a patent is a so-called "registered right" (Registerrecht). Thus it is clear from the patent, what and to which extent it is protected. This is different with copyright. Here you don't have legal certainty at first, as you need a judicial clarification to state a copyright violation.
These remarks are wrong, too. It is clear that copyright violation cannot be commited, if a company develops a rival program self-contained, without the aid of foreign source or object code. So it is always possible to avoid a copyright violation.
On the other hand especially a patent violation, although it's attribute of being register right, can only be stated trough judicial clarifications, as patent law is based on undefined law concepts like
- Inventive step
- Technical character
and as the concept of "novelty" -- although now undefined law concept -- is problematic, because the ideas of the software, generally available only as object code, are nowhere catalogued, as extraction of these ideas is only possible at a uneconomic cost.
A patent law suit is a game of pure chance, which only rich companies can afford, a patent violation is only clear after a legally binding court decision and not after the patent is granted.
An assumed copyright violation in contrast can be easily proved by comparing the source code of both programs. That the source code of the supposed copyright infringer is at first not available neither in a copyright or a patent law suit is a problem of the procedural law and not of the substantive law. The judicature sometimes considers it frustration of evidence (Beweisvereitelung), if the opposing party does not make their source code available, whereas it as a matter of course can have a legitimate interest to keep its source code secret.
In regard to procedural law, there is possibly a call for action to make uniform rules, under which conditions which persons (e.g. experts) must get access to the source code.
One has to see, that the normal and legitimate look at rival products must be allowed
in all sectors and that just this behaviour stimulates innovation and progress. Imitiations may only be banned, if they endanger major investions of the innovator. With the regard to software, investions of the invovator are not endangered, as a potential imitator has to infringe copyright to embrace these.
In diesem Zusammenhang verweise ich auf eine neue Studie von James Bessen und Robert M. Hunt mit dem Titel
An Empirical Look at Software Patents
, die belegt, dass im Bereich der Softwareherstellung Patente nicht Innovation und Fortschritt fördern, sondern, dass Mittel, die für F&E zur Verfügung standen, in das Patentwesen wandern.
This study is available at http://www.researchoninnovation.org/swpat.pdf and ties up to the working draft "Sequential Innovation, Patents and Imitiation" by James Bessen and Eric Maskin, which is available in revised version at http://www.researchoninnovation.org/patrev.pdf.
I cannot believe, that it is possible without a understanding of the deeper business and national economic connections to produce a useable directive about "computerimplemented inventions".
In conclusion, I want to reinforce, that the draft by Miss McCarthy is not be suited to create legal certainty, transparency or any other positive effect.
I quote from a decision of the german Federal Court at 22.06.1976 (file number X ZB 23/74, Dispositionsprogramm):
According to that a doctrine for methodic action under use of controllable forces of nature for an achievement of a causally manageable result is to regard as patentable. A bare business or computing method, how it is described in this patent application, is obviously a command for methodic action and the strict obedience for this command leads to a causally manageable result. However it lacks a use of controllable forces of nature to achieve this result.
[...]
How argued, the inclusion of human intellect forces as such in the forces of nature, whose use for the creation of a innovation constitutes its technical character, would lead to the effect, that plainly all results of human thinking, which just contain a command for methodics action and are causally manageable, would get technical character. This would practically mean to abandon the concept of Technical and would open patent protection for achievements of human thinking, whose character and bounds are not to be realized or surveyed.
Without a use of the formulation "use of controllable forces of nature for the achievement of causally managable result" and without the concepts "business method" and "computing method" or aequivalent formulations/concepts you will not achieve legal certainty.
I think it is very dangerous, to see "overcoming" of the judicature of the German Federal Court from 1976 as "liberation of anti-progressive thinking" and ignore the warnings from the German Federal Court.
IV-net.at 2003/04/24: Letter to Austrian EuroMPs- Stephan Maras, speaker for the Industrial Property Commission of the Austrian Industry Association IV-net.at, demands in the name of machine engineering and electronics companies that not only programmed industrial processes but also pure data processing programs must be directly patentable and claimable as texts. MEP Malcolm Harbour (UK, PPE/Conservatives) will table an amendment which allows text claims. Moreover Maras asserts that copyright is suitable only for poems, whereas in the case of computer programs it is easy to circumvent -- mere translation from C to Perl is enough. Maras sent this statement to Austrian MEPs together with a "Joint Statement of Industry" from major european associations which argues in the same sense.
- Melullis 2002: Zur Sonderrechtsfähigkeit von Computerprogrammen
- The presiding judge of the Patent Senate of the Federal Court of Justice, Dr. Klaus Melullis, analyses the legal and political situation concerning software patents and concludes that the European Commission's directive proposal "with its by-and-large affirmation of software patentability does not fit into the system of the EPC", and that the legislator has so far failed to assess the concerned interests and to clarify the basis of his decision.
- Dr. Swen Kiesewetter-Köbinger: Stellungnahme zur Patentierbarkeit von Softwarekonzepten
- Die vorgesehene Einführung der Patentierbarkeit von Softwarekonzepten läßt unter anderem Zweifel an der Verfassungsgsmäßigkeit der daraus resultierenden Folgen aufkommen. Große Teile der Antworten zu dem gestellten Fragenkatalog sind von dieser Sorge geprägt. Da einige dieser Überlegungen noch ziemlich neu sind und bisherigen, zu oberflächlichen Betrachtungen widersprechen, hat deren Ausführung einen breiten Raum eingenommen. Hoffentlich gelang es trotzdem, die Problematik der Patentierung von Software mit typischem Werkcharakter bei gleichzeitigem Schutz durch das Urheberrecht allgemeinverständlich darzustellen.
- BGH 1976-06-22: Dispositionsprogramm
- A landmark decision of the German Federal Court (BGH): 'organisation and calculation programs for computing machines used for disposition tasks, during whose execution a computing machine of known structure is used in the prescribed way, are not patentable.' This is the first and most often quoted of a series of decisions of the BGH's 10th Civil Senate, which explain why computer-implementable rules of organisation and calculation (programs for computers) are not technical inventions, and elaborates a methodology for analysing whether a patent application pertains to a technical invention or to a computer program. The Dispositionsprogramm verdict is especially famous for general and almost prophetic terms in which it explains that patent law is a variant of copyright for a specialised context, namely that of solving problems by the use of controllable forces of nature. Any attempt to "loosen and thereby in fact abolish" the concept of technical invention would lead onto a forbidden path, the judges warn.
- BGH copyright senate 1990-10-04: "Betriebssystem" (operating system) Decision
- Decision of the 1st Civil Senate of the German Federal Court concerning the copyright protection of computer programs and the borderline between copyright and patent law: An operating system does not contain technical inventions, because it serves only to control the computer and connected peripherals within the scope of functionality predetermined by the hardware layout. The program is not subject to patent law but to copyright only, and even the EPO's recent (1986) decisions to grant patents for computer inventions do not change this, because the relevant patent claims, at least according to the interpretation of the EPO's Technical Board of Appeal, are not directed to computer programs as such but only to technical processes. A computer program enjoys copyright protection in as far as it contains elements of individual creation which are not determined by technical requirements or algorithms but depend on the weaving-together (arrangement and implementation) of such elements through individual planning and imagination. This
- Software Patents vs Parliamentary Democracy
- We explain the state of play regarding state-granted idea monopolies, specially in the context of the draft directive "on the patentability of computer-implemented inventions" (software patent directive), which has become a test case on the extent to which parliaments have a say in contemporary European legislation.
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