The Hindu dated March 26, 2005, Chennai edition, has published an article titled "Patents Bill: a setback to innovative software developers" written by Shanthi Kannan.
The report has totally missed the fact that under Article 10(1) of the TRIPS Treaty, "Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)", which India has complied with even by 2000, by bringing in amendments to the Copyright Act, 1957. The mis-application of patent law to cover computer programs would have been a serious violation of our international obligations and India could have been arraigned before the WTO for breach. The illegitimate practice of granting patents for computer programs is notably present in US, Japan and a few European countries. India should complain to the WTO and obtain a ruling asking these countries to comply with the TRIPS treaty and update their laws.
The only good about the report is that it carries the opinions of the "Chennai based cyber expert and trademark attorney A. Mohan", who has largely spoken on the lines of the representations made by FSF India against the introduction of patentability for embedded software. Nasscom is reported to be saying that embeded software needs "protection" as though it would have helped innovative small and medium companies in the IT sector. Nothing could be further from the truth: it is the mega transanational corporations that have abused patent law in countries like the US and obtained a large number of "software patents" to extract "royalties" from small and medium sized companies, and indulge in all kinds of "cross licensing" that neither promote innovation, nor help the software field apart from being a drain on revenue.
The Hindu, has revealed a shameful fact about India's software industry: "India has a very few software products - the industry supplies "bodies" (body shopping) to develop software for global giants". It is clear that those thirsting for "innovation" would hardly be engaged in such a trade, that is as despicable as slavery, and its practitioners could possibly have no interest other than making profits.
The Free Software Foundation of India campaigned strongly against the change, and not surprisingly, the most innovative contributions are made by free software developers. The article completely glosses over the fact that GNU/Linux is extensively used to write "embedded software", and there is no cause to imagine that the dropping of the amendment is a "setback to innovative software developers". The most innovative developers, including the FSF, OSI, Oracle corporation, and many others have publicly condemned the practice of "software patents". The truth is that the timely intervention of the Left Parties has saved and protected the software industry from falling into a disastrous pit of doubt, darkness and doom.
I have sent my comments to the Editor, Hindu, at letters@thehindu.co.in Please share your opinion too :)
Ramanraj K ramanraj.k@gmail.com writes:
I have sent my comments to the Editor, Hindu, at letters@thehindu.co.in Please share your opinion too :)
Trust me., I've tried that a dozen times and that _does not_ help.
> I have sent my comments to the Editor, Hindu, at > letters@thehindu.co.in Please share your opinion too :)
Trust me., I've tried that a dozen times and that _does not_ help.
One additional idea is to phone the reporters who published these stories, to explain to them what they misunderstood. You can try both.
Ramanraj K ramanraj.k@gmail.com writes:
amendments to the Copyright Act, 1957. The mis-application of patent law to cover computer programs would have been a serious violation of our international obligations and India could have been arraigned before the WTO for breach. The illegitimate practice of granting patents for computer programs is notably present in US, Japan and a few European countries. India should complain to the WTO and obtain a ruling asking these countries to comply with the TRIPS treaty and update their laws.
I am confused. Section 5, article 27 of the TRIPS agreement says
1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.
Then how could patents for software ideas be an illegitimate practice under the TRIPS agreement? Doesn't this just mean that software is both copyrightable and patentable? What am I missing?
Vijay
Vijay Kumar wrote:
Ramanraj K ramanraj.k@gmail.com writes:
amendments to the Copyright Act, 1957. The mis-application of patent law to cover computer programs would have been a serious violation of our international obligations and India could have been arraigned before the WTO for breach. The illegitimate practice of granting patents for computer programs is notably present in US, Japan and a few European countries. India should complain to the WTO and obtain a ruling asking these countries to comply with the TRIPS treaty and update their laws.
I am confused. Section 5, article 27 of the TRIPS agreement says
- Subject to the provisions of paragraphs 2 and 3, patents shall
be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.
Then how could patents for software ideas be an illegitimate practice under the TRIPS agreement? Doesn't this just mean that software is both copyrightable and patentable? What am I missing?
This is the stupid argument that is frequently used by those who support "software patents".
By the time we come down to Art. 27, should we conveniently forget what we read under Arts. 9 and 10? Article 10(1) says " Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)." That is in plain English, and Computer programs are to be dealt with as literary works, and it is plainly wrong to apply patent law to literary works. Patents for literary works would be absurd, and precisely why "software patents" are an illegitimate practice.
Please know that: "Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them, or they have no operation at all". -Chief Justice Marshall in William Marbury v. James Madison 2 L. Ed. 60 (1803) also reported at: http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm
This is too fundamental a proposition to be challenged. The doctrine of judicial review rests upon it, and this is too elementary a principle of interpretation. Apply this principle to Art. 9 and 10 of TRIPS, and you cannot get it wrong. There is no such thing as being "half-pregnant" or having both patents and copyrights at the same time since both are largely mutually exclusive.
Ramanraj K ramanraj.k@gmail.com writes:
Vijay Kumar wrote:
Then how could patents for software ideas be an illegitimate practice under the TRIPS agreement? Doesn't this just mean that software is both copyrightable and patentable? What am I missing?
This is the stupid argument that is frequently used by those who support "software patents".
Cool it, Doc... Forgive me for my ignorance!
Please note that, I am not supporting patenting of software ideas. I just want to know the right interpretation of the TRIPS agreement.
Regards, Vijay
-
Joe Steeve -
Ramanraj K -
Richard Stallman -
Vijay Kumar