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IPRs and Software:
History, Challenges and Prospects

            VIII Congreso Mundial
            de Derecho Informatico...
Overview
    Copyright and software
*


    Patents and software
*


    Open Source Software (OSS), including main IPR
*
...
Copyright protection of software
    Initial work in 1970s-80s to develop sui generis system of
*
    software protection....
Copyright protection of software
    Rights protected:
*
    – Reproduction
    – Adaptation
    – Distribution
    Except...
Patent protection of software
    Software-related inventions now patentable in many
*
    jurisdictions.
    Applies to c...
Arguments in favor of
        patent protection for software
    Patents protect the concepts underlying
*
    computer pr...
Arguments against
        patent protection for software
    Double protection of software (copyright + patent) is
*
    e...
Patent protection of business methods
    Some countries, led by US beginning with 1998 State
*
    Street Bank and Trust ...
Open-
        Open-Source Software (OSS)

    OSS is software for which the underlying
*
    source code is available to u...
Free and Open-Source Software
                 Open-
                   (FOSS)
    OSS is “free” in sense of freedoms gran...
Open-
         Open-Source Software (OSS)

    General characteristics of OSS licenses:
*
    – free redistribution of sou...
Open-
          Open-Source Software (OSS)

    More than 70 different OSS licenses, GNU
*
    GPL most popular, followed ...
OSS and Copyright

    FS and OSS licenses are based on copyright,
*
    usually the copyright owner’s right of
    distri...
IPR issues concerning OSS

    The “viral effect” of the GPL - what is the definition
*
    of a ‘derivative work” under c...
Coexistence of
          OSS & commercial software
    Many business models involve OSS in combination
*
    with commerci...
Software piracy
    Software piracy is a global problem that saps
*
    resources that could go into product development.
...
Relevant WIPO activities
    Regional awareness-raising program series “IPR and
*
    Software in the XXI Century: Perspec...
Conclusion
    Software is a powerful tool for economic
*
    development, and IPRs plays a major role in
    promoting R&...
Thank you
     www.wipo.int
richard.owens@wipo.int
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01 Richard Owens W I P O

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Transcript of "01 Richard Owens W I P O"

  1. 1. IPRs and Software: History, Challenges and Prospects VIII Congreso Mundial de Derecho Informatico Cali, 28 de octubre, 2008 Richard Owens, Director Copyright and ew Technologies Division World Intellectual Property Organization (WIPO)
  2. 2. Overview Copyright and software * Patents and software * Open Source Software (OSS), including main IPR * issues Coexistence of OSS and commercial/‘proprietary’ * software (mixed platforms) A word on software piracy *
  3. 3. Copyright 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 * creation, but with a technical character. 1991 EU Directive on the Legal Protection of Computer * Programs 1994 TRIPS Agreement * 1996 WIPO Copyright Treaty (WCT) *
  4. 4. Copyright protection of software Rights protected: * – Reproduction – Adaptation – Distribution Exceptions to rights: * – make backup copy – decompilation/reverse engineering converting source code into object code, to understand how a • program works but decompilation is limited to obtaining information necessary for • interoperability Decompiled code cannot be shared! (cf Free and Open-Source Open- • software)
  5. 5. Patent 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) 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).
  6. 6. Arguments in favor of patent protection for software Patents protect the concepts underlying * computer programs, promote development of software and computer-related industries. 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
  7. 7. Arguments against patent protection for software Double protection of software (copyright + patent) is * excessive. Software patents are expensive, small inventors and * 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.
  8. 8. Patent 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 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.
  9. 9. Open- Open-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 build and distribute new versions incorporating their changes.
  10. 10. Free and Open-Source Software Open- (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: non-free software is a social non- problem (Richard Stallman) – OSS: non-free software is sub-optimal (Linus non- sub- Torvalds)
  11. 11. Open- Open-Source Software (OSS) General characteristics of OSS licenses: * – free redistribution of source code; – availability of source code; – users are allowed to create ‘derived works’ (adaptations, derivative works) by modifying source code; – users may distribute the modified code; – the licenses must be technologically-neutral. technologically-neutral.
  12. 12. Open- Open-Source Software (OSS) More than 70 different OSS licenses, GNU * GPL most popular, followed by BSD. Governments are turning to OSS: * – Brazil, Cuba, Ecuador, Venezuela – China – The Netherlands, France, Croatia – U.S. Navy
  13. 13. OSS 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 legal terms, both FS and OSS are ‘proprietary’). Recent US case, Jacobsen v. Katzer, affirms that * OSS licenses are copyright licenses, not merely contracts.
  14. 14. IPR 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 * 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.
  15. 15. Coexistence of OSS & 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.
  16. 16. Software 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 * 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.
  17. 17. 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) – San Jose de Costa Rica (August 2008) WIPO Development Agenda (2007, ongoing): studies * and conferences on: – Free and Open-Source software Open- – open systems – open standards – public domain –
  18. 18. Conclusion 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. 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.
  19. 19. Thank you www.wipo.int richard.owens@wipo.int
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