Patents on e-Works of Authorship?

Alexandre Oliva

The argument that combining a work of authorship with a general-purpose computer makes the combination patentable has convinced many a technology layman to accept the notion of software patents, i.e., state-granted monopolies on distributing and using programs that instruct computers to behave in a certain way. I will apply the same argument to other kinds of works of authorship and show it is as absurd as holding a monopoly on configuring a computer to display pictures or tell stories with certain innovative features.

Patents and Copyrights

Although both share an ancestry in monopolies granted arbitrarily by the royalty in the middle age, the laws that brought these state-granted monopolies into democratic societies had different social rationales, they apply to different subject matters, for different periods of time, with different requirements and limitations.

Patents cover inventions, i.e., non-obvious ideas with industrial application, such as features of machines or processes that transform matter. They enable holders to stop others from making and selling products embodying such features or processes for up to 2 decades after the required patent application.

Copyrights cover creative works of authorship, i.e., expressions of ideas fixated on a tangible medium, such as literary works, pictures, music, movies, and sculptures. They enable holders to stop others from making, modifying, distributing and publishing copies of the work and parts thereof, modified or not, for at least 5 decades after the work is first published. In many countries, this state-granted monopoly lasts for the life of the authors plus 7 decades!

Although these laws have nothing in common other than being oft-abused state-granted monopolies, legal laymen are often confused about patents and copyrights, certainly because they have recently been misrepresented as property, under a term invented to conflate and confuse disparate and unrelated legal institutes.

Software patents

Confused people then speak of patenting computer programs, meaning holding or registering copyrights on it, often without realizing that copyrights do not require registration.

Then, when we speak of software patents, they think of copyrights on software (a kind of literary work), and often conclude there is nothing objectionable about that, because literary works have long been subjected to copyright monopolies.

Such laymen will seldom realize that software, formulas and algorithms are explicitly excluded from patent coverage, and that by software patents we mean patents that used a legal trick to escape this exclusion and establish a monopoly on any practical use of a formula, algorithm or computation on a computer.

A computer system configured to...

It is worth emphasising: a software patent is not a monopoly on a particular computer program, but rather on some idea that can be expressed as instructions for a general-purpose computer so that it behaves in a certain way, and that, if patented, enables the patent holder to stop anyone else from developing, distributing or running any program that embodies that idea.

For example, a mathematical formula or algorithm to determine whether or not a number is a prime number is not patentable, nor is a computer program that implements such a formula or algorithm. But, per the argument that enabled patent offices to collect patent fees and companies to sue others over software, a general-purpose computer configured to run such a program is patentable.

... do something innovative

Just like software, pictures, stories, music, movies and other copyrightable works of authorship are not patentable. Nor are ideas of features that could be embodied in any such works, no matter how innovative, inventive, original or difficult to imagine or to realize they are.

For example, if you were to try to patent the idea of “a moving picture of a baby grabbing and dragging an object that is displayed on a 3D screen”, to sue whoever dares taking such a picture when tablets equipped with 3D-touchscreens come up, you wouldn't succeed, because even if the idea is inventive (I don't know that anyone has so far taken any such picture, or written about the idea of such a picture), pictures or ideas for pictures are not patentable subject matter.

If you were to try to patent the idea of “a story that ends with the villain escaping because his crime partner warned him by sending an instant message to his glass-phone”, you wouldn't succeed either, for the same reason.

A patent on “a song with a solo played remotely by a humanoid robot on a piano whose white keys are made of ivory produced by genetically-modified bacteria” wouldn't succeed either, even though it combines more than one innovative idea in an innovative way.

You may realize that coming up with this kind of idea, or combination of ideas, is not hard at all! It doesn't take as much effort as actually writing a story, taking a picture, or composing a song that embodies the described features: if this sort of idea was to be patentable, like software patents have become in some places, the only effort it would take would be to choose some recent actual invention, think of a way to fit it into an original arrangement and run to the patent office before someone else applies for a patent on the same arrangement.

Now add a computer!

Remember that the argument that supports software patents is that loading a non-patentable work of authorship onto a computer so that it behaves in a certain innovative way makes it possible to obtain a patent on the combination? This is how software “inventions” become patents today: by as little as adding a computer to claims as unpatentable as the ones in the previous section!

What if the same argument was applied to other works of authorship?

Patent claims such as “a computer system configured to display a moving picture of a baby grabbing and dragging an object that is displayed on a 3D screen”, “a computer system configured to display, tell or show a story that ends with the villain escaping because his crime partner warned him by sending an instant message to his glass-phone”, “a computer system configured to play a song with a solo played remotely by a humanoid robot on a piano whose white keys are made of ivory produced by genetically-modified bacteria” should not prevail, because this article would be prior art, but small variations thereof would succeed!

Patents on art and entertainment

Tablets, phones, ereaders, movie and music players, cameras and recorders, and TV sets and digital radios are all computers more or less in disguise, and they're quickly becoming the only way to create and enjoy works of authorship: film, cassettes, records, and analog TV are niche markets where still available; analog radio is going down the same path; ebooks and 3D pictures can only be viewed on computers.

What then? When pretty much any work of authorship requires a computer to serve its primary purpose, just like software already does, then patents on “a computer system configured to” show, play or perform works of authorship that embody certain features will enable anyone with time and money to apply for such patents to turn all forms of art and entertainment into the same kind of minefield that software has become on countries that allow software patents under the same legal trick.

We must put an end to this legal trick and to the patents that follow from it!

Copyright 2013 Alexandre Oliva

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