French ex-PM condemns Software Patents

Michel Rocard MEP, former prime minister of France, today condemned software patents in an interview with French newspaper Liberation. "After careful reading and reflection, I have aligned myself with the supporters of free software. Software patents should be permitted only if something uses the forces of nature or acts on matter. [Otherwise] the patentability of software is likely to create a terrifying financial and legal threat, weighing down on software creators. It would slow down the growth of human knowledge and of economic activity. One will no longer be able to create a piece of software in one's own corner without being threatened to pay exorbitant royalties". Rocard is one of the most senior and influential figures in the EU parliament's Social Democrat group, PSE, and wrote the official opinion on swpat of the parliament's Culture committee. But Rocard's position is diametrically opposed to that of another member of the PSE, the UK Labour party's Arlene McCarthy. The group's MEPs will be making up their minds this week in Strasbourg which of the two to follow.

Below is a full translation of the interview: (also at http://www.aful.org/wws/arc/patents/2003-06/msg00221.html)

Michel Rocard opposes the patentability of software

"Everyone copies, and this is a good thing"
By Florent LATRIVE and Laurent MAURIAC

Liberation, Monday June 30, 2003

"A civilization should be preserved where the place of the world outside the market and of the human intellect is respected."

One does not find a computer on the Parisian desk of Michel Rocard. He admits it freely: he is not "one of the generation which has an easy facility with the computer". However, as president of the Committee for Culture in the European Parliament, he has had to plunge himself, with an "evil madness", into software patentability, "words which even a year ago were unknown to me". Today, if he speaks about it in such an animated way, it is because hiding behind the technical aspects there is a real issue about civilization. For the ex prime minister, the introduction of patents on software in Europe would be "very serious". It would call into question the freedom of movement of human knowledge. Until now, software has been officially excluded from patentable subject-matter in Europe, just like mathematical equations or cooking recipes. But for several months, a very polemical draft Directive has been before the institutions of the European Union which aims to modify this regime. It will be put to the vote in the European Parliament at the beginning of September.

Q.: Why do you consider that Europe should not authorize patents on software?

Since the cave of Lascaux, it is not clear that humanity has progressed in its aesthetic capacities. As for its ethical capacities and morals, one is even more doubtful. On the other hand, in the field of technical knowledge and the control of nature, the progress is astounding. The dizzying growth of knowledge is the key to this history. Knowledge was spread by copying, everyone recopied everyone, and that was good. With the patentability of software, one is re-writing the statutes on human knowledge. All of the intellectual exchange in the creations of the human spirit, the means of bringing knowledge together, will be achieved more and more by software. If patentability is introduced, i.e. a cost, a prohibition, one sets up a new rule. It is worrying.

Q.: It does not however appear abnormal to remunerate creators and inventors...

Two things should be distinguished: works, protected by the rights of the author, and inventions, protected by the patent. In the 19th century, one was initially concerned with the former. It was regarded as normal to remunerate the creators and to guarantee the safeguarding of the integrity of their works. So the droit d'auteur [ie copyright + moral rights] was created. Later, the patent was established, that is to say, a prohibition on anybody using an invention without paying a royalty. During the 20th century, we had no problem in differentiating the two. In contrast to works [oeuvres], protected by the rights of the author, invention is defined by the bringing into play of matter or the forces of nature. The conviction that human knowledge must circulate implied that there should be no patents on the products of this knowledge. A mathematical equation is not patented. In 1972, the European patent convention contained a simple sentence in good taste: "software is not patentable."

Q.: What do you recommend for software?

I am not against all patentability of software but there is a border to respect. The campaigners for free software, with whom I aligned myself after careful reading and reflection, consider that one is dealing with an invention (which one can thus patent) if something uses the forces of nature or acts on matter. The ABS brake on cars, for example, is controlled by software, but it is founded on the use of the forces of nature and it acts on matter. On the other hand, any software which describes or facilitates the circulation of the products of the mind [les produits de l'esprit] (nb text processing, for example) should not be patentable. However, the European Patent Office has gone beyond the initial conception and granted about thirty thousand patents concerning software, which poses a problem. There is an urgent need to get away from the current legal uncertainty. On their side, the United States have developed a considerable field of patentability of the software. It extends for example to teaching methods or surgical methods (applied on software and computers, note). These are codifications of human know-how, nothing more, and there is no reason to patent them.

Q.: Which would be the consequences of a European directive opening the way to a multitude of software patents?

There is a difference between software invention and any other body of invention. In this sector, design is essentially sequential: one builds on thirty pieces of software to invent a thirty-first. The patentability of software is likely to create a terrifying financial and legal threat, weighing down on software creators. It would slow down the growth of human knowledge and of economic activity. One will no longer be able to create a piece of software in one's own corner without being threatened to pay exorbitant royalties. Thousands of SMEs, often friends working together, work on ideas in this way.

Q.: You are in the same political group in the Parliament as the rapporteur of the directive, Arlene McCarthy, of the English Labour party. And you don't agree...

We are not prioritising the same dangers. The possibility that human understanding may be made patentable is a thing to be feared. A civilization should be preserved where the place of the world outside the market and of the human intellect is respected. That is a conviction I have as a social democrat.