01 richard owens w i p o
TRANSCRIPT
IPRs and Software: IPRs and Software:
History, Challenges and ProspectsHistory, Challenges and Prospects
VIII Congreso Mundial
de Derecho Informatico
Cali, 28 de octubre, 2008Cali, 28 de octubre, 2008
Richard Owens, Director
Copyright and �ew Technologies Division
World Intellectual Property Organization (WIPO)
OverviewOverview
* Copyright and software
* Patents and software
Open Source Software (OSS), including main IPR * Open Source Software (OSS), including main IPR issues
* Coexistence of OSS and commercial/‘proprietary’ software (mixed platforms)
* A word on software piracy
Copyright protection of softwareCopyright protection of software
* Initial work in 1970s-80s to develop sui generis system of
software protection.
* WIPO Model Provisions on the Protection of Computer
Programs (1978, but not followed by governments).
* Consensus emerged (1985-90): software is an author’s * Consensus emerged (1985-90): software is an author’s
creation, but with a technical character.
* 1991 EU Directive on the Legal Protection of Computer
Programs
* 1994 TRIPS Agreement
* 1996 WIPO Copyright Treaty (WCT)
Copyright protection of softwareCopyright protection of software
* Rights protected:
–– ReproductionReproduction
–– AdaptationAdaptation
–– DistributionDistribution
* Exceptions to rights:* Exceptions to rights:
–– make backup copy make backup copy
–– decompilation/reverse engineering decompilation/reverse engineering
•• converting source code into object code, to understand how a converting source code into object code, to understand how a
program worksprogram works
•• but decompilation is limited to obtaining information necessary for but decompilation is limited to obtaining information necessary for
interoperabilityinteroperability
•• Decompiled code cannot be shared! (cf Free and OpenDecompiled code cannot be shared! (cf Free and Open--Source Source
software) software)
Patent protection of softwarePatent protection of software
* Software-related inventions now patentable in many
jurisdictions.
* Applies to computer programs per se (a few countries)
or software as a part of a ‘computer-implemented
invention’ (more countries) invention’ (more countries)
* Basis for patent protection – copyright protects ‘literal
expressions’ of computer programs, but patents
protect underlying functionality of program, what the
code does, not just how it is written.
* Software patents are controversial at global level (eg,
rejection of proposed EU Directive on computer-
implemented inventions in 2005).
Arguments in favor of Arguments in favor of
patent protection for softwarepatent protection for software
* Patents protect the concepts underlying
computer programs, promote development of
software and computer-related industries.
* Patents recognize that both software and * Patents recognize that both software and
hardware exhibit technical behavior (software
provides a set of instructions to hardware).
* TRIPS A. 27: patents for all inventions that are
“new, involve inventive step, capable of
industrial application” – technological
neutrality
Arguments against Arguments against
patent protection for softwarepatent protection for software
* Double protection of software (copyright + patent) is
excessive.
* Software patents are expensive, small inventors and
companies are disadvantaged.companies are disadvantaged.
* Software patents inhibit competition, restrict
cumulative innovation, and limit development of open
standards for interoperable products and services.
* Software patents may conflict with Free Software and
Open-Source licenses.
Patent protection of business methodsPatent protection of business methods
* Some countries, led by US beginning with 1998 State
Street Bank and Trust decision, protect business
methods.
* In re Bilski case, US Court of Appeals for the Federal
Circuit, could limit patent protection for business Circuit, could limit patent protection for business
methods:
* (1) what standard should apply in determining
whether a process is patentable subject matter;
* (2) extent to which a method of process must be tied
to physical embodiment or machine, in order to be
patentable.
OpenOpen--Source Software (OSS)Source Software (OSS)
* OSS is software for which the underlying
source code is available to users so that
they may read it, make changes to it, and they may read it, make changes to it, and
build and distribute new versions
incorporating their changes.
Free and OpenFree and Open--Source Software Source Software
(FOSS)(FOSS)
* OSS is “free” in sense of freedoms granted to user, not
gratis as in cost-free.
* Grew out of Free Software Foundation founded by
Richard Stallman in 1985.
* But FS and OSS are not the same:
–– Free software: nonFree software: non--free software is a social free software is a social
problem problem (Richard Stallman)(Richard Stallman)
–– OSS: nonOSS: non--free software is subfree software is sub--optimal optimal (Linus (Linus
Torvalds)Torvalds)
OpenOpen--Source Software (OSS)Source Software (OSS)
* General characteristics of OSS licenses:
–– free redistribution of source code; free redistribution of source code;
–– availability of source code; availability of source code;
–– users are allowed to create ‘derived works’ users are allowed to create ‘derived works’ –– users are allowed to create ‘derived works’ users are allowed to create ‘derived works’
(adaptations, derivative works) by modifying source (adaptations, derivative works) by modifying source
code; code;
–– users may distribute the modified code; users may distribute the modified code;
–– the licenses must be technologicallythe licenses must be technologically--neutralneutral..
OpenOpen--Source Software (OSS)Source Software (OSS)
* More than 70 different OSS licenses, GNU
GPL most popular, followed by BSD.
* Governments are turning to OSS:* Governments are turning to OSS:
–– Brazil, Cuba, Ecuador, Venezuela Brazil, Cuba, Ecuador, Venezuela
–– China China
–– The Netherlands, France, Croatia The Netherlands, France, Croatia
–– U.S. NavyU.S. Navy
OSS and CopyrightOSS and Copyright
* FS and OSS licenses are based on copyright,
usually the copyright owner’s right of
distribution.
* Contrary to popular belief, OSS licenses do not
involve abandonment of copyright in code (in involve abandonment of copyright in code (in
legal terms, both FS and OSS are ‘proprietary’).
* Recent US case, Jacobsen v. Katzer, affirms that
OSS licenses are copyright licenses, not merely
contracts.
IPR issues concerning OSSIPR issues concerning OSS
* The “viral effect” of the GPL - what is the definition
of a ‘derivative work” under copyright?
* What is the extent of patent rights in any source code What is the extent of patent rights in any source code
licensed under OSS? How does the ‘viral effect’ of
GPL interact with patent rights?
* Effect of GPL V3, A. 11 – programmers must confer
patent licenses to cover all redistribution of code
under GPLv3; initiation of patent lawsuit will
terminate the programmer’s rights under GPL.
Coexistence of Coexistence of
OSS & commercial softwareOSS & commercial software
* Many business models involve OSS in combination
with commercial software. A growing number of
these are revenue-generating.
* Use of OSS in mixed platforms can offer benefits,
such as reduced costs and faster development cycles.
* But technical and licensing implications merit careful
attention, particularly where software patents may be
involved.
Software piracySoftware piracy
* Software piracy is a global problem that saps
resources that could go into product development.
* Creators and investors of commercial, OSS and free
software are all damaged by piracy
* Piracy becoming easier due to migration from * Piracy becoming easier due to migration from
physical media such as CDs to the Internet, and
particularly to file-sharing services.
* BSA Global Software Piracy Study for 2008 estimates
that 38% of software installed on PCs worldwide was
obtained illegally.
Relevant WIPO activities Relevant WIPO activities
* Regional awareness-raising program series “IPR and
Software in the XXI Century: Perspectives,
Challenges and Opportunities”
–– Sri Lanka (May 2007), Malaysia (February 2008)Sri Lanka (May 2007), Malaysia (February 2008)
–– San Jose de Costa Rica (August 2008)San Jose de Costa Rica (August 2008)–– San Jose de Costa Rica (August 2008)San Jose de Costa Rica (August 2008)
* WIPO Development Agenda (2007, ongoing): studies
and conferences on:
–– Free and OpenFree and Open--Source software Source software
–– open systems open systems
–– open standardsopen standards
–– public domainpublic domain
––
ConclusionConclusion
* Software is a powerful tool for economic
development, and IPRs plays a major role in
promoting R&D and rewarding software innovators,
whether based on OSS or proprietary models.
* OSS is well-established in business and e-Government
user communities.user communities.
* Businesses and government procurement authorities
have options to select suitable software from multiple
sources.
* The choice between OSS and commercial software, or
mixed platforms, is best based on business needs,
including costs and maintenance.
