Intellectual property issues get wider airing

Nice to see intellectual property issues getting an airing outside the rarified oxygen chambers of the legal fraternity/sorority and the technical press.

Nice to see intellectual property issues getting an airing outside the rarified oxygen chambers of the legal fraternity/sorority and the technical press.

What would be even nicer to see would be the level of discussion going beyond 60-point headlines about whether Canadians armed with a patent can shut down our internet-derived export trade. Much more interesting is the larger question of whether digital technology is charging ahead too fast for the law to keep up, and what this means for the country and its IT development.

The 50-year-old Patents Act, for instance, was being reviewed even before the latest furore erupted over whether business method or software patents should be issued and why the Intellectual Property Office legally cannot determine whether a patent describes an obvious invention. As far as I understand the last issue, the act only requires examiners search for previous claims. Those who dispute the patent have three months to challenge its validity after it's been accepted. Perhaps the level of interest will gee things along a little.

The issues that arose in the patent review were summarised by the Ministry of Economic Development last November. The patentability of software and/or business methods was an issue addressed by 14 submissions, which generally accepted the idea though some wanted qualifications on such applications. Telecom noted that the controversy surrounding business methods in the US had highlighted the difficulties of examining such patent applications, buy due to lack of resources rather than that such inventions were inherently not patentable.

What if software patents actually inhibited innovation and R&D spending? Some research suggests that when US legal decisions made it easier in the 1980s to patent software-based inventions, this may have had the long-term effect of lowering innovation incentives. US intellectual property specialist James Bessen has found that low patenting standards encourage aggressive cross-licensing, particularly among incumbents in mature industries -- creating "patent thickets" -- and thus poor incentives to invest in R&D. High patenting standards "encourage non-aggressive strategies that are critical for strong R&D incentives", Bessen says.

Another intellectual property affair working its way through the review process is copyright.

The current act is only nine years old, but of course its drafting precedes most things digital. The heads that have overseen the review were wise in waiting to see how countries like the US and Australia have dealt with that Hydra-headed complication, and its ability to render instant, perfect reproductions.

To summarise the summary (of policy recommendations from the Associate Minister of Commerce that have been put before Cabinet), substantial amendment is not required but clarification of some rights and exceptions is necessary.

Technical changes to the definition of things like copying and limiting the liability of ISPs, who make "transient" copies, are unlikely to attract much attention, though I expect much more heat from the music industry about "format shifting". The paper recommends that the owner of a sound recording be allowed one copy in each format for personal use. This I have to applaud, if only for its attempt to rectify an anomaly which effectively put average consumers on the wrong side of the law. No one buys another format of something they already own except as a replacement. But what if such exceptions conflict with copyright protection methods built into the recording by the copyright holder? And why only sound recordings? Why not DVDs or software? The protection methods being built into CDs are retroactive, attempting to gain some of the copyright security of encoded visual products like DVDs, or the licensing agreements of software.

Speaking of software, the paper proposes copying to allow decompilation to create an independent, dissimilar program "where that information is not otherwise readily available". Reverse-engineering, long accepted as legitimate fair use in the US, has recently been challenged in the courts there. Restricted copying or adapting software for error correction is also proposed. I can hear the squeals already.

Other proposed changes include allowing "time shifting", which may legitimise video recorders for making short-term copies, and protecting rights management technology that identifies content but doesn't track use. One may ask how the country can enforce such, given that most such technology will be produced in countries which may have lower protections for privacy.

Broatch is Computerworld's deputy editor. Send letters for publication to Computerworld Letters.

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