Software patents - The programmers’ protection or the world Giants’ interests?

Józef Halbersztadt Magdalena Jackowska

Software patents

The programmers’ protection or the world Giants’ interests?

Warsaw, 2011

Józef Halbersztadt INVESTIN company consultant; since 1990 he has been working as a patent expert in the Patent Examination Department of the Patent Office of the Republic of Poland; he also trains candidates for patent attorneys. He is an alumnus of the Warsaw University of Technology, where he specialized in industrial automation at the Faculty of Precision Mechanical Engineering. In the years 2004-2005, he served as the Patent Office representative and the Secretary of the inter-ministerial group responsible for elaboration of the official Polish standpoint concerning the EU draft directive on „the patentability of computerimplemented inventions”. In the past, he was employed in the Industrial Institute for Automation and Measurements, where he participated in implementing solutions from the spheres of automating production processes and automatic control.

Magdalena Jackowska INVESTIN company Board Member and Operations Manager; she is in charge of the High-Tech Incubators Network KOMBINATORIUM. Moreover, she is responsible for elaborating strategies, business models and operational plans for the benefit of technological companies at their early stage of development (namely at seed/start-up stage). At present, she also fulfills the function of Denco Logic S.A. President. Furthermore, she supervises the process of gaining financial means from investors of high-risk and private ones acting on the NewConnect market.

Last but not least, she is a start-up IT company shareholder.

Project Name

Methods of Intellectual Property Protection. Dissemination Actions.

Graphic design

Katarzyna Stamatel

Correction

Agnieszka Gaworek

Review Copyright © 2011

prof. UW Barbara Liberda INVESTIN sp. z o.o.

All rights reserved Issue 1 Free copy

ISBN Printing and binding

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978-83-932427-8-8 PUP Polgraf

Chapter 1 The concept of intellectual property Chapter 2 The beginnings of the computer era Chapter 3 Legal solutions Chapter 4 A patent for a patent Chapter 5 The other side of a patent Chapter 6 Copyright protection Chapter 7 World regulations and the situation in Poland Chapter 8 Software licence agreements

str. 24-25

str. 22-23

str. 18-21

str. 16-17

str. 15

str. 13-14

str. 9-12

str. 7-8

str. 5-6

Table of content

Chapter 9 The policy and the practice

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The concept of intellectual property

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Chapter 1 The concept of intellectual property

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phonograms in their recordings, and those of broadcasters in their radio and television programs; inventions in all fields of science; scientific discoveries; industrial designs; trademarks, names, images, and designs used in commerce; geographical indications of source; protection against dishonest competition.

We are all aware of the fact how valuable specialist knowledge is. Chemical formulas, technological solutions, even culinary recipes are often jealously guarded secrets. However, we never have the direct use of our acquired knowledge the way we might use the tangible goods. Knowledge once revealed becomes available for the potentially unrestricted number of users in any time or place. Although knowledge dissemination is profitable and has unquestionable social value, we should remember about the interests of its creators so that they could retain their revenue and make profits from making their work public, which is their intellectual property.

Intellectual property refers then to the rights connected with intellectual activities in the literary, artistic, scientific and industrial field.

Intellectual property (IP) is intangible part of the creations of the human mind, that is, this is the property which is not an object although it usually is embodied in material things. World Intellectual Property Organization (WIPO) defines the notion of intellectual property as a collection of rights relating especially to: scientific, literary and artistic works; the artistic interpretations and performing artists in their performances;

Intellectual property protection may arise automatically, without any formal requirements - these are the rights related to copyright.

The protection might as well be granted by the proper Patent Office through research or registration. In this case we speak of patents for inventions, trademark and industrial design protection, registration of industrial design or geographical indications, etc..

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Copyright protects all intangible goods such as literary and film works, musical works, photographs and sculptures, as well as maps, industrial art works, architectural designs or technological solutions such as computer programs.

Protection is admitted from the moment of establishment (that is, from the moment of the creation of the work), regardless of complying with the formalities (placing the copyright note or submitting to Copyright Collecting Agency) and irrespective of esthetic or utilitarian value of the work. Copyright protection does not include discoveries, conceptions or ideas which are the source of the work. rawem (mon

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The exclusive rights are the rights to use the intellectual property protected by the law for professional or financial purposes (monopoly).

The exclusive rights for industrial property are established by the decision of Patent Offices and are in force on the territory of the country which granted these rights.

According to the main rules of Paris Convention for the Protection of Industrial Property of 20 March 1883 as revised at Stockholm on 14 July 1967 and ratified by Poland in 1974:

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the exclusive rights are granted irrespectively in particular countries and are subject to the legislation of the country which grants them; in all countries to which Convention applies (the Union - practically most countries of the world) persons who are not nationals but are domiciled shall be treated in all cases of industrial property protection in the same manner as nationals of the countries of the Union; any person who has duly filed an application for granting exclusive rights in one of the countries of the Union, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed.

According to the accepted construction of the exclusive rights the primal holder of works are their creators, or other legal persons connected with the work creation process, who remained with the creator in specific relation at the moment of creation.

The exclusive rights protect the person who invested time, money and other sources in finding an innovative solution against exploiting the outcome of their efforts by other persons. Exclusiveness enables developing revenue by the exclusive use of the object of protection; it also allows the transfer of the rights to another person, e.g. by granting them license.

Chapter 2 The beginnings of the computer era

The notion „computer program� has never received a common definition in national and international legal systems. Colloquially, the term software has been ascribed to anything which is inside a computer, but is not the equipment itself (that is, hardware).

Computer programs are as old as computers, or even older. Computing theory based on the division between hardware of solid structure and adaptable and removable software had been developed well before the first computer was built.

For a very long time little attention was given to a computer program as a separate, autonomous good. Computer programs were treated as manuals delivered together with the equipment. In

the fifties of the twentieth century computers became merchandise. The biggest amounts of advanced equipment was produced for scientific and research institutions, individual scientist and other users were only given the very complex universal machines. It was the task of the users to find the right use for them. That was when the first software started to be written. The users wrote software adjusted for their needs, and then they passed it on. It worked the same way when scientists made their works available to other scientists. Although the early computers were far from standard, a basic golden rule was followed when writing software.

The programs or at least their parts should be written in such form, that they might be available to other users. To make it more accessible even the source codes were made public.

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Those days there were few programmers, they often knew each other personally. That is why it was natural that in this environment software was treated as common good. This attitude brought many mutual benefits.

It was the businessmen and lawyers who made this

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situation change. For them software was an intangible asset and therefore it had market value. As a result, less than a decade after the early software writing attempts, the first tires were launched to create the institution of the exclusive right which would enforce control over these intangible goods.

Chapter 3 Legal solutions

This way a debate was started, which continues to this day. The basic questions have been asked - to protect the software or make it available. Speaking of protection – how should it be implemented? An agreement has never been reached on what kind of institution might be proper to protect the rights for computer programs. The solution most often suggested is adopting special types of exclusive rights designed only for computer software.

Throughout the years many versions of special exclusive rights have been proposed. International institutions prepared projects of appropriate settlements but none of them received the final approval. Expectations of the parties interested in global agreement turned out to be too discrepant.

Decisions of the governing bodies in individual countries, especially in the USA, later confirmed in international negotiations, went in other direction.

Episodically since the late sixties and regularly since 1976 U.S. Copyright Office has registered computer programs. Meanwhile, U.S. Patent and Trademarks Office in spite of numerous appeals still and consistently refused to grant patents for the same computer programs.

In the seventies the U.S. Supreme Court brought in the verdict in three cases assessing to what extent information technology solutions are patentable. In each case it was finally declared that they were not. According to the Court’s resolution, programs are not patentable similarly to IT or mathematical aspects being parts of wider solutions, for example computer steering of a technological process. The viewpoint of Patent Offices and Courts in other counters was similar or even more unfavorable for patenting computer software.

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Article 52 of EUROPEAN PATENT CONVENTION (Journal of Law of 26 April 2004) Patentable inventions (1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1: (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; (d) presentations of information.

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

(4) Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body shall not be regarded as inventions which are susceptible of industrial application within the meaning of paragraph 1. This provision shall not apply to products, in particular substances or compositions, for use in any of these methods.

Patenting of information technology solutions was excluded even more clearly by recording it directly in European law. European Patent Convention was concluded in 1973 and came into effect in 1977. It contains patent exclusions among which computer programs are listed.

The first patent was granted on 7 December 1965.

It concerned automatic creation and writing of two-dimensional diagrams. The invention was created by Marin Goetz from Princeton in New Jersey in the USA. The description of this first computer program contained very few elements similar to software. That is why, regardless some resistance, the decision of the Patent Office was positive. One of the draft drawings of the solution is presented on the Fig. 1

It is worthwhile to emphasize that perhaps rarely, but even at that time patents were granted for IT solutions.

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CONVENTION ON THE GRANT OF EUROPEAN PATENTS (EUROPEAN PATENT CONVENTION) of 5 October 1973 text as amended by the act revising Article 63 EPC of 17 December 1991 and by decisions of the Administrative Council of the European Patent Organisation of 21 December 1978, 13 December 1994, 20 October 1995, 5 December 1996, 10 December 1998 and 27 October 2005 and comprising the provisionally applicable provisions of the act revising the EPC of 29 November 2000.

Fig. 1 Draft drawing of the first granted software patent.

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Nevertheless, the meaning of the patents granted in the seventies and eighties was inconsiderable. The possibilities to enforce the exclusive rights resulting from those patens were very limited. In such circumstances there were very few who would be eager to file an application for a patent.

It is difficult to enlist exactly the current number of patents granted for the computer software.

European Patent Office is estimated to have granted at least 30 000 patents before 2005 (data acc. www.ffii.org). The following pie-chart presents the percentage proportion of software patents in individual countries.

The number of software patents granted in Europe falling to individual countries presents chart 1.

As clearly shown in the pie-chart most European software patents are owned by American or Japanese companies. It does not mean, however, that in the USA or Japan the IT market does any

better than in Europe. On the contrary. The European IT sector is actually the fastest developing one, but the American and Japanese IT companies are the leaders in applying for patents for the software they created.

The fact how important are the intangible goods in the contemporary world might be perfectly illustrated by the latest (July 2011) exceptional transaction of Apple, EMC, Ericsson, Microsoft, RIM and Sony consortium. The consortium is willing to pay 4.5 billion American dollars for a bundle by Norton Networks Corporation including 6 thousand patents and patented applications. This would be the record amount of money paid for the pieces of signed certificates stamped by U.S. Patent Office, not for tangible goods or competitive business entity. Those pieces of paper represent the classified innovation, which is the basis to demand license fees which are now not only the advantage in technological thought but a crucial source of income. This mechanism is visible in the case of Microsoft making considerable profits on the sales of competitive products.

Chart 1. The amount allocated to software patents in Europe attributable to individual countries

USA JP

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USA

RU

HR

JP

NO

EG

DE

CN

IR

GB

NZ

TH

FR

TW

BM

FI

ZA

CL

CA

IN

MC

SE

HU

PH

IL

HK

IT

GR

NL

BY

CH

IS

BE

TR

AU

MY

KR

PL

IE

BR

ES

SA

DK

LU

SG

AR

AT

CZ

Chapter 4 A patent for a patent

Patenting software is uneasy, but not impossible though. The experienced patent spokesmen know the tricks and techniques enabling to register some IT solutions. Both in the USA and in Europe there have been some publications released revealing how to achieve this goal, it has been also

possible to enroll for an adequate training course.

Patent specifications resulting from the knowledge acquired this way cause a good deal of amusement or fury in the genuine specialists. Even the authors themselves frequently cannot recognize their own inventions in such descriptions.

P IBM Patent

structure or data structure (the programs are turned off).

This group might be represented by a series of several alternative options of server-client

The case is described in such a way that it re-

communication submitted by the same au-

sembles automated real-time processing of

thor team from IBM. The client launches two

electrical signals or the use of hardware to

applications and cache memory serves as al-

support electronic devices designed to ana-

ternate data stream storage of each applica-

lyze the rapid change of parameters of elec-

tion.

trical signals between the transmitter (server) and the receiver (client).

Patent specificatons PL180570 = EP0823170 = US5754774, PL180619 = EP0823171 = US5859971,

Patents of this sort are rather inventions of legal

PL180608 = EP0823173 = US5867661, PL182978

service industry rather than software industry.

= EO0823093 = US5878213, do not quote any relevant information about the syntactic

source: www.ffii.org.pl

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Chapter 5 The other side of a patent

A patent protects inventions against appropriation or having profits from someone’s product without the consent of the creator or owner. This is a justified and fair conception, however it hides one danger. When patents become too easily accessible they will obstruct the progress rather than stimulate it.

The IT business in Europe is developing unusually rapidly. Why is that so? Because it is dominated by small and medium enterprises, which focus on development and free market competition. They cannot afford to invest in unlawful patents and costly patent wars.

!

Permitting patents for software may lead to impediments in IT sector development.

The blogs are boiling with the examples of the possible consequences of such situation. Not only programmers or information technologists protest against extending patent law to

software. Business representatives gathered around various organizations are warning that the introduction of software patents will force some companies to pay the patent payoffs and expensive legal procedures. Those that will not be able to afford it will disappear from the market. Introducing software patents in Europe would also paralyze the European software industry, as the patents originating mainly from the outside would become executable also in the European Union.

Bill Gates described this issue this way: „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. (…) The solution to this is (…) patenting as much as we can. (…) A future start-up with no patents of its own will be forced to pay any price whatever price the giants choose to impose”. (“Challenges and Strategy”, 16 May 1991)

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Chapter 6 Copyright protection

Unlike in the case of patents, the official acknowledgement that copyright should also include computer programs had more significant consequences.

Copyright allows the creators (that is the disposers of the copyright) to control of the simple usage of the program but also any amendments, adaptations, or using it by bundling with the other program. The idea of software as a creative thought embodied in a computer program made it possible to make it the subject of valuation and trading.

The next step to acknowledge copyright for software was concluding agreements between the disposer and the users. The content of such agreements was usually unilaterally imposed (by the producers) and defined the ways how the program may be used and for what purposes.

The agreements of this sort often bear the name of software sales contracts; however the subject of the contract is in fact not sold at all.

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The user, contrary to what he/she might think, does not receive a copy of the program. In typical contracts the program is only leased to the user. In the end-user agreement the creator or the distributor of a program only grants the license to use it, similarly to musical work, which may only be played. In license agreements concluded with other software producers the permission to use, copy and modify the software under strictly specified conditions is granted.

Proper sale of software means the sale of property rights for the program, that is, its code.

This form of sales is seen at the creation of software on demand and each case is settled by a separate agreement, under which the creator sells all property rights to the customer.

Within the ordinary license agreements the user has no rights to interfere in the program, amend it, adjust or bundle it with other program. This assurance of lack of interference in the software is relatively easy to achieve. It is enough not to provide the source code, but only give the complex binary code.

The exclusive right for computer programs is not at all necessary to separate software trade from computer equipment trade. The factors such as popularization of computer use and the standardization of equipment introduced by the main producer, IBM, naturally created the conditions for origin of the separate software market in the sixties. IBM itself, wary of antimonopoly suits, in 1969 introduced the policy of concluding separate agreements for the delivery of equipment and for software provision.

The latter were based on the assumption that the source code is a commercial secret and the licensee is obliged to keep this secret by not sharing the software with anybody.

The protection of computer programs with the use of copyright quite quickly became widespread worldwide. It gave the possibility of easily accessible, free of charge and formality free protection

within the existing legal system of long tradition.

Acknowledging software as a subject of copyright did not settle the relevant details of how to use these regulations. For it turned out that in various countries software copyright was enforced in different ways.

It resulted mainly from the fact that to be subject to protection the work should stand out as “original�. Such general notion enabled various interpretations. In some countries, for example FRG (the Federal Republic of Germany), the courts added an additional supplementary requirement which was meant to assess the protective capability of a program. The requirement concerned the level of individuality. The level of creation was to significantly exceed the competences of an average programmer, and the program itself was supposed to be more than average.

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Chapter 7 World regulations and the situation in Poland

In the eighties particular countries included computer programs to copyright regulations as an utterly separate category of the protected works. Poland did not do that as software was regarded to meet the prerequisites of a work; consequently it could not be subject to current copyright protection.

Polish law theorists (among others S. Sołtysiński) belonged to the numerous group of the supporters of the idea that the creation of a special protection system would be the most optimal solution. They did not negatively determine the issue of accepting software as a subject of copyright, but they drew attention to considerable inadequacy of regulations concerning such characteristic category of intellectual property.

To avoid discrepancies within the European Union copyright protection of computer programs was harmonized by the Directive 91/250/EEC

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of 14 May 1991 on the legal protection of computer programs. It was the first harmonising undertaking in the EEC in the field of copyright.

It was accepted then that a computer program shall be protected if it is original in the sense that it is the author’s own intellectual creation. This provision is interpreted as a compromise between the English-American and Continental conception of originality. The first stresses the fact that a work comes from the author (that is, it was not copied from somebody else’s work), while the latter connects the originality with individuality of the work which is the reflection of the creator’s personality.

In 1991 Poland concluded an arrangement with the European Community and its member countries (the so called Europe Agreement) in which it obliged to approximate the Polish intellectual property protection system to the EEC standards.

Unix and BSD story

tem in order to eliminate high costs connected with maintaining different systems in all centers.

Unix is one of the first operational systems. It was

It signed with Berkeley a contract on extending

written by the workers of Bell Labs research cen-

the functionality of Unix and financed the works

tre, a part of AT&T. The works started in Septem-

of a research group founded for this purpose

ber 1969; the first edition of the system was com-

(the Computer Systems Research Group). As

pleted in 1971. The system was presented to the

a result a TCP/IP protocol was born, the founda-

wider audience for the first time on a symposium

tion of the Internet. In 1980 the CSRG released

on the principles of Operational Systems’ opera-

4BSD - another version of the system, which of-

tion. A professor of Berkeley University of California

fered numerous improvements (processes control,

was present there, he got deeply interested in the

Delivermail protocol – the forefather of Sendmail).

system and began experimenting with it at his Uni-

The next version, released in 1981, was named

versity. For this purpose a special new model of a

4.1BSD in order to avoid names collision with UNIX

PDP-11/45 computer was bought. In January 1974

System V, sold by AT&T.

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Unix 4 was installed into it.

In 1982, the CSRG Project Manager left the group The Unix academic license allowed its use and ex-

to found the Sun Microsystems together with three

tension by the students and academics. As a result

graduates. Sun delivered an operational system

more and more academics used it during classes.

based on 4.1BSD - SunOs together with the work-

The system quickly gained popularity and the Uni-

ing stations. The same year AT&T released the first

versity bought next computers to install Unix into

commercial version of their system and named it

them. In 1975 two Berkeley students decided to

UNIX System III. The release was followed by the

write a Pascal compiler for Unix. In the meantime,

rise of academic institutions licence fees. As the

because of the ED editor limitations, they created

BSD systems also included the Unix AT&T code, it

their own editor – the EX. In 1976 they stared to cor-

was required to own an AT&T license in order to

rect the different parts of the system and sent the

use the BSD system. As the years passed, Berkeley

patches to Bell Labs. With time, also other universi-

received more and more inquires for releasing

ties got interested in these patches and the Pascal

a system free from the AT&T code. The result of

compiler, so in the beginning of 1977 the first com-

these efforts was the Networking Release 1 pack-

pilation of the Berkeley Software Distribution was

age. The Package was a still incomplete opera-

made (later named 1 BSD).

tional system, as a substantial part of the code still belonged to AT&T and it was not changed for a

The users kept sending even more patches to Pas-

license free code. Networking Release 1 was the

cal compiler. That is why in 1978 a second distri-

first distribution released on a liberal BSD license in

bution was issued (2BSD). The same year, the Uni-

total. It cost $ 1000, but the purchase allowed limit-

versity bought a new VAX computer. Unix did not

less copying.

possess virtual memory support at that time, so the researchers decided to create it. A new system

AT&T granted licenses to many companies at that

core with Unix tools and updated 2BSD programs

time, which then made their own commercial ver-

were released in 1979 under the name 3BSD. It

sions of Unix (IBM AIX, HP-UX, SGI IRIX, Microsoft Xe-

was the first operational system from Berkeley.

nix). After some time the number of different, not completely compatible with each other versions

The Defense Advanced Research Projects Agen-

of Unix in circulation became so large that in 1987

cy (DARPA) also became interested in Unix. The

AT&T with Sun decided to unify the code of the

Agency needed a universal operational system

several most popular Unix systems: UNIX System V

for its national research centre network. DARPA

Release 3, 4.3BSD, SunOS i Xenix. The works were

decided to standardize the operational sys-

started in 1988 and completed in 1990 with UNIX

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System V Release 4.0 (SVR4). This version was the

(General Public License) as too restrictive and

greatest success and the basis for Solaris – a sys-

also categorically opposed to put any binary

tem developed by Sun.

elements in the system (without the source code). As a result the GPL license in OpenBSD

In 1991 the CSRG released Networking Release 2,

is accepted only for such components whose

which was almost a complete operational system.

rewritting would take too long (e.g. GCC com-

Soon, two more systems were released, based on

piler).

Networking Release 2. It was a free 386BSD and a commercial BSD/OS, developed by Berkeley

OpenBSD enjoys the popularity among server

Software Design Incorporated (BSDi), a company

administrator who value security the most. The

founded by the former CSRG workers. Soon after

creators of Open BSD boast that for 10 years

the release of 386BSD a group of users unhappy

only 2 gaps were found in the default installa-

with the pause in system development tried to

tion of the system that could be exploited re-

work on it themselves under the name NetBSD.

motely.

Later, another group of users and programmers created FreeBSD project.

NetBSD and FreeBSD Project have also been active until this day. Net BSD supports more

In 1992 AT7T filed a lawsuit against BSDi and the

than fifty four equipment platforms and has the

University of California in Berkeley, about copy-

opinion of the most universal Unix system. De-

right and Unix commercial sign infringement. The

spite the fact that Linux core supports more pro-

trial slowed the development of the BSD systems

cessor types, it has never been able to support

down for almost two years, and many users got

so many platforms at the same time as NetBSD.

interested in Linux, free from legal ambiguities. In

FreeBSD still remains the most popular system of

1993 Novell bought all rights for Unix from AT&T

BSD family, thanks to the liberal attitude toward

and reached the settlement with the defend-

code license and locked components which

ants in 1994. Following this settlement, three files

enable larger equipment support than other

were erased from the system, and seventy files

BSD versions.

had AT&T copyright information attached. In June the same year 4.4BSD-Lite was released

All BSD systems are not as popular as Linux, yet

- the first claim-free distribution. In fear of law-

most Linux distributions (OpenSSH, Bind) contain

suits NetBSD and FreeBSD were based on this

elements deriving from BSD. It is worthwhile to

distribution. The last version of the system was

add that a substantial part of FreeBSD compo-

4.4BSD-Lite Release2, made by the Computer

nents became the basis of Mac OS X by Apple.

Systems Research Group and released in 1995.

Microsoft also used some of the BSD code in their

Soon after this release the CSRG was dissolved.

systems – for example the tools like ftp, nslookup, finger, rsh and rcp bundled with Windows 2000,

In December 1994 one of the NetBSD founders

XP and Vista all come from BSD systems.

quarreled with the other members of the team and a few months later created a new branch

Based on: M. K. McKusick, „Twenty Years of

of the distributors – OpenBSD. The project be-

Berkeley Unix: From AT&T-Owned to Freely Re-

came known for the unprecedented attach-

distributable”, in: „Open Sources: Voices from

ment to the quality of the source code and un-

the Open Source Revolution”, O’Reilly Media,

compromising attitude towards licensing.

Sebastopol, California 1999, Chapter 3, pp. 3146, available in the Internet: http://www.oreilly.

The creators of OpenBSD rejected the GPL

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com/catalog/opensources/book/kirkmck.html.

The Copyright and Neighboring Rights Act of 4 February 1994 was the fulfillment of these obligations and it constituted explicitly the protection of computer programs following in almost every detail the 91/250/EEC Directive Standards.

Polish IT specialists treated the regulations excluding software patents very seriously and they never applied for patent protection neither in Poland nor abroad. Single software patents were granted for foreign entities. That is why making software patents possible would quickly lead to the monopolization of the national IT market by the overseas companies, hampering the creative activity of the domestic companies, especially the small ones as well as start-ups.

§

The Act on Copyright and Neighboring Rights, Article 74 section 2 Protection accorded to a computer programme shall cover all the forms of expression thereof. Ideas and principles which underlie any element of a computer program, including interfaces, shall not be protected.

Act of 4 February 1994 r. Copyright and Neighbouring Rights.* (consolidated text)

Ideas and principles underlying any of computer program elements, shall not be protected. This regulation, derived from Directive 91/250 is aimed at exposing a basic rule, according to which the protection pertains only to the ways of expression, while the underlying ideas and principles in the work are not protected by the copyright.

That is why logical and mathematical rules applied in the program, the ideas and rules underlying the algorithms or programming languages (ideas, methods and calculation procedures), mathematical formulas and solutions, mathematical algorithms cannot exercise the right of being protected.

Following these regulations there have been numerous lawsuits worldwide about authorship or unlawful use of programs or their elements. There are no such disputes in Poland.

There was only one case of this sort when the Court had the chance to have their say about computer program protection, basing on the Act from 1952 (preceding the one currently in force). The verdict of the Court of Appeal in Gdańsk from 1993 says that computer software may be treated as a scientific or literary work.

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Chapter 8 Software licence agreements

The contemporary license models may be divided into two groups: proprietary licenses and open licenses. The first are very similar to each other within their group in terms of characteristics and scope, while the latter are much more diversified.

does not only mean the access to the source code.

The conditions of open source software distribution must be in accordance with specified rules. FOSS licenses are in a sense standardized, as they are created and evaluated by transparently run organizations.

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The proprietary licenses make the source code a secret in the sole disposition of its owner, only the machine code is revealed.

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Open licenses reveal the source code so that anyone may use it (permissive licenses) or they preserve it (restrictive licenses).

Licenses with a strong restrictiveness obligation are named copyleft. The word was coined by Stallman as a parody of the word copyright. Contrary to what one might think, the word copyleft was not meant to negate or intentionally break the rights of the authors.

Modifying the program is also restrictive, which means that the conditions concerning the source code must remain unchanged in part or in whole. There exist a series of options describing this restrictiveness in detail.

Contrary to proprietary software, free and open source software (FOSS) were defined. Open source

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Copyleft operates within the legally binding regulations, however it cleverly uses them. Instead of serving as a limitation of the users’ rights and keeping the works close to their creators (or rather entrepreneurs and publishers) copyleft gives almost every rights to the users (the right to use, distribute, create derivative works, draw revenue from the work) leaving the copyright disposers the right to admit the authorships and the potential change of license.

Some open licenses permit the existence of the patent rights and patent fees because they do mention them at all while other exclude patent fees.

Copyleft licenses negate the use of patent law for software, but some permissive licenses (Apache), and some strongly restrictive licenses negate it as well.

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The GNU General Public License (GNU GPL or simply GPL) is the most widely used free software license, originally written by Richard Stallman and Eben Moglen in 1989 for the GNU project approved by Open Source Initiative.

The original GPL was based on a unification of similar licenses used for early versions of GNU Emacs, the GNU Debugger and the GNU C Compiler. The second version of the license, version 2, was released in 1991. Version 3 was officially released on June 29, 2007.

Translated from: http://pl.wikipedia.org

The legal validity of omitting patent rights for IT solutions is reasoned by their connection with the copyright. In Poland copyrights are given to computer programs automatically, just like literary works and they cover the form of expression, ideas and rules.

A patent for IT solution would practically mean exclusive rights for the ideas and rules of a work already protected by copyright. In practice, considering this kind of a patent legally binding would eliminate the earlier (automatically) acquired copyrights.

Clause 7 of GPLv2 licence:

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If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program. http://www.gnu.org/licenses/gpl-2.0.html/

Article 1 (21) of the Act: Protection may apply to the form of expression only and no protection shall be granted to discoveries, ideas, procedures, methods and principles of operation as well as mathematical concepts.

Article 74 (3) of the Act:

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Unless the contract of employment stipulates otherwise, the author’s economic rights in a computer program created by an employee while performing of his/her duties under the employment relationship shall be owned by the employer.

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Chapter 9 The policy and the practice

Patents for computer programs are one of the most controversial issues of the global innovative policy. The judges and theorists of patent law incline to the idea of granting patents for IT solutions. However, the IT specialists themselves and the entrepreneurs from this business - i.e. people most interested in the protection of their rights are definitely against.

Research made in the USA shows that only 24% of IT entrepreneurs approve of granting patents for software. As a comparison, in the biotechnological fields, 75% of enterpreneurs are for.

The executive and legislative power in the USA (the President and Members of the Congress) have been consistently sidestepping the problem of IT solution protection. The American Patent Act dates back to 1952. The Supreme Court despite the politicians’ and businessmen encouragement did not pursue the issue of acceptability IT patents. It even refused to grant patents in several cases which were the

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subjects of its decisions. As a justification the Judges of the U.S. Supreme Court said: “It was never the object of those laws to grant a monopoly for every trifling device, every shadow of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, enabling them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities lawsuits and vexatious accountings for profits made in good faith.� (Atlantic Works v. Brady, 1017 U.S. 192, 200 (1882)).

In Europe the Patent Convention explicitly excludes computer programs from the patentable sphere and software patents are even less popular than in the USA. All attempts to legalize IT patents in Europe were so far in vain. The Diplomatic Conference of the European Patent Organization in 2000 did not agree to delete software from the subjects illegible to patents.

In 2002 the European Committee propounded a project of a new Directive aimed at sanctioning the EPO practice for software patents and imposing this policy on patent offices of all member countries in the EU. This operation was also a fail-

ure. Admittedly, the supporters of the IT patents managed to achieve majority in the EU Council, however the European Parliament influenced by the public opinion, and facing the lack of support from the European small and medium companies, finally rejected the Directive in July 2005.

Currently the member countries of the EU have the freedom in the interpretation of the software patent regulations. Poland, next to the Great Britain, is one of those European countries where the practice of withholding patents for the IT solutions is especially rigorous.

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WARSZAWA