NZCS lobbies to end patent protection for software

The New Zealand Computer Society has come out in support of a ban on software patents, sending a letter yesterday to Minister of Commerce Simon Power supporting a Commerce Select Committee recommendation to remove patent protection for software in New Zealand law.

The move comes after a quick poll of NZCS members, IT professionals from around New Zealand, found 80 percent opposed patent protection for software.

"The Society acknowledges this is a complex issue with many reasons for and against patentability of software. However on balance, it is in New Zealand's best interests for software to be covered through the provisions of copyright in the same way movies and books are, rather than through the patent system which has significant problems," NZCS chief executive Paul Matthews says in a blog post.

NZCS's stance sets it on a collision course with new industry body NZICT, which yesterday released a statement saying the removal of patent protection was"worrying" as patents are considered integral to software protection. NZICT represents many ICT vendor companies.

NZCS says its postion is based on a consideration of New Zealand's best interest and "can be viewed as truly independent and free from influence".

The society says its rationale for supporting the removal of patent protection is slightly different from that of the select committee.

"Firstly, we strongly believe that every individual or organisation has a fundamental right to protect their own property, and consequently support the concept and implementation of Copyright and Intellectual Property within reasonable bounds," the NZCS letter says.

"However this has to be a balanced view. As you are aware, the issue of software patents is a deeply complex one, but inevitably the best interests of New Zealand and an innovative New Zealand environment must come first (which is the reason for patents in the first place).

"The point is, consideration must be given to what software is and whether it is simply the digital manifestation of a “real world” concept, an algorithm, a combination of science and art, or something different again in the context of patentability."

NZCS argues that patents protect concepts or an idea whereas copyright protects manifestation of an idea. Consideration must be given to the nature of software before considering whether patent protection is appropriate.

Given that, copyright provides sufficient protection for software, the society says.

"By definition software is built upon a large layer of concepts and prior work, either knowingly or otherwise, much of which is often obvious within the context of the patent definition, and this unique nature cannot be ignored.

"Copyright provides protection against a company or individual copying a competitor’s product, is entirely appropriate, and a protection we very much continue to support. The difference is that in many cases software patents prevent the fair use of what we consider the fundamental concepts and actions of the Internet and software, whereas copyright protection is appropriately limited to manifestations.

"If software is viewed as a manifestation of 'real world' concepts then the real-world concept can be patented without the need for a separate software patent. From the perspective of a manifestation, copyright provides the appropriate protection and a software-specific patent becomes superfluous.

"If on the other hand software is considered as a separate concept from the physical world it must be considered an algorithm, in which case it would not pass the test of patentability in most jurisdictions."

NZCS goes on to outline what it sees as problems around allowing patent protection for software including trivial patents and damage to innovation and goes on to quote Microsoft founder Bill Gates from 1991: “If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today”.

Microsoft's new national technology officer, Mark Rees, earlier this week expressed his concerns about the removal of patent protection: "We are not sure why software entrepreneurs shouldn't be given the same protection afforded to leaders in other industries. It is not clear to us why they have been singled out."

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