Why are Software Patents Illegal?
Under International Treaties such as:
The World Intellectual Property Organization (Copyright Treaty)
People who write software (the right holder) are known as “authors” not “Inventors”.
These Treaties all obligate signing members (e.g. USA, EEC) to protect computer programs as “literary works”
TRIPS Article 10.1,
“Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).”
WIPO Copyright Treaty Article 4,
“Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression”
This includes the execution or processing of a program, as demonstrated in the EEC software copyright Directive 1991,
““the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole. Insofar as loading, displaying, running, transmission or storage ”
They also stipulate that exceptions to exclusive rights of authors are to be limited to “special cases” which do not conflict with a normal exploitation of the work and cannot be prejudicial to the author's inalienable rights. (e.g. the rights to sell,rent,broadcast,give away,translate, and generally enjoy. ).
Article 13 TRIPS,
“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”
Article 10 WIPO,
“(1) Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
The reason that people who work in data processing are known as authors is that the underlying ideas in data processing are logical. Logical means reasonable, or built on earlier known statements or conditions. (much like the authors of books) Therefore the underlying “ideas” or “concepts” are independently deducible even if they appear non-obvious and cannot be owned. After all they are only ideas with no physical appliance of science (apart from when dressed up in legal speak).
The argument that software can produce an effect above and beyond the effect of which a computer was intended to perform is nonsense. We could just as easily talk about the technical effects produced on a calculator chip when we get it to perform sums. There can be a “real” physical process operated by a computer than can be patentable, but this cannot extend to data processing.
Authors cannot own underlying ideas, but inventors can as part of their “invention”. When the field of software (aka data processing) is opened up to “inventors”, they can block authors from exploiting their works on the grounds that they own the “underlying ideas”. Therefore this is prejudicial to the rights of authors and illegal under all these Treaties.