The question is who missed the key points

Posted Sep 1, 2005 8:43 UTC (Thu) by FlorianMueller (guest, #32048) [Link]

I had already left the discussion and I don't intend to comment too much here now that it has reopened, but let me say this: I don't think we disagree on the question of whether IPRs *can be* and *indeed are* misused by some. Also, I don't see any comments here that consider every form of IPRs automatically something illegitimate, but references to the gnu.org manifestos are dangerously close to that with respect to software.

I, personally, think it's more difficult to challenge the patent system in a field like pharmaceuticals where there is no other proven form of protection, and clearly a high up-front investment required for R&D. I know that there are cases of misuse, and spurious and fraudulent patents, even in that space, but it's a tall order to demand the replacement of the patent regime with something completely different in that field.

As for software-related legislation, my approach in discussions with politicians is that intellectual property is generally a good thing and authors (like me) should receive a maximum level of protection, but let's look at where IPRs run counter to their purpose. For instance, if patents can be used to expropriate a copyright holder, then there's a conflict even within an IP-is-great framework. In my experience, the only basis on which politicians (except a very few on the left margin) are prepared to discuss the idea of abolishing software patents is if at the same time the benefits of copyright are highlighted.

There are some signs now that the European software patent debate may restart. A vice chairman of the Legal Affairs Committee in the European Parliament, Rainer Wieland MEP (a German conservative, but unlike other German conservative MEPs, he's not completely unreceptive to our points), has published a column in a German magazine in which he says he's going to push for a new attempt at clarifying the status of software patents in Europe. Some MEPs show symptoms of severe battle fatigue and would rather not touch that hot iron again, so it remains to be seen what will happen and when. However, in case it does restart, my preference would be for a legislative project that addresses software patents and copyright, and possibly even a sui generis protection, in a holistic sense in order to have more structural flexibility to meet the needs of creators while ensuring that the market stays competitive.