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European law is patently absurd

You might expect an ICT company to welcome a new law granting patents for software. But RM's Tim Pearson warns of escalating costs for schools

Few people would disagree that intellectual property needs to be protected if we are going to encourage innovation and reap the rewards, whether it is new cancer drugs or new software. At the core of protecting intellectual property are the copyright laws and patents. It's a complicated area, but in order to understand the implications behind proposals for a new European law on software patents, we need to know the difference between the two.

At its most basic, copyright is about copying. If someone makes an unauthorised copy of, say, RM's EasiTeach software, and passes it on to another person, then copyright has been breached. Copyright is about expression rather than ideas. It is about protecting original works of art rather than protecting inventions. If the rapper 50 Cent records some music, he can copyright the music he has created, but he can't copyright the idea of rap music. In other words, the copyright law doesn't stop other artists creating their own rap music if they want to. Copyright is automatic; you don't have to register for it and most people understand the concept.

But patents are a different story, because they are about protecting ideas.

If 50 Cent was able to patent his music, anyone else wanting to create rap music would have to buy a licence from him for the privilege. Fortunately, music can't be patented and neither, by and large, can software, at least not yet in Europe. Patents are an agreement between society and inventors.

The deal is that the inventor - a patent holder - is normally granted a 20-year monopoly on his or her idea. I suspect most of us would think it's right that if a pharmaceutical company spends a decade on research and hundreds of millions of pounds on developing a new drug, that company is allowed to patent that compound and prevent anyone else from making the drug (except under licence) for a period of time that allows it to make back its investment. Patents also make it easy to see if other pharmaceutical companies are ripping off the idea.

A further aspect of the deal between inventors and society is that if you want to patent your invention you have to make it public. In the case of a new drug, this can be of great benefit to society, because it can move things forward if, for example, we know there's a new drug under development that could benefit millions.

However, I can't think of a single software package that has had such an impact on society. It is hard to think of software breakthroughs where the inventive step is so great that it really moves society forward. On top of this, there are an awful lot of ideas involved in writing the millions of lines of code that can make up a software program. So, who is to say which ideas are worth patenting? And is it a good deal for society, or even industry to offer a two-decade monopoly on them? The other key point with patents is that they are only granted where there is an inventive step. The vast majority of computer programs do not involve an inventive step because they are the performance by a machine of an act, calculation or method that has been carried out manually for a long time.

But things could change if a proposed European software patent law becomes a reality. There have been at least two attempts to introduce such a law - the most recent was late last year. The European Commission is in the process of considering harmonising Europe's (admittedly confused) patents law under the heading of a "community patent" and some fear that this exercise could be used as yet another attempt to introduce software patents, which to date have been successfully resisted by the UK Patent Office.

A European software patent law wouldn't just affect software developers, it could affect end users, too. Let me give you two examples of how the world might look if software patents become a reality in Europe. In the US, the Sco Group sued IBM for one billion dollars, alleging that IBM had breached its Unix patents on development work for Linux, the open source operating system used by millions of people around the world. In another example, Unisys informed software developers that it held a patent on the GIF image format widely used across the internet. Unisys said that anyone developing programs that created or displayed GIF images should pay it a royalty. The new law could introduce this sort of court action to Europe.

Patents don't go away easily and it can cost you a lot of time and money defending yourself against them. This is one of the reasons that the open source community (where users collaborate to develop software, like Apache) is worried about the effect software patents could have on its work. If software patents become more clearly lawful in Europe, they will undoubtedly affect the educational market in many ways, some of them unforeseen. The UK has had a vibrant software market for many years and it has thrived despite the absence of enforced software patents. But if software patents become a reality, this could all change. Yes, we do need to protect intellectual property, but if the price for this is that education and innovation suffer then that is too high a cost to pay.

Software patents will result in the lock-down of the free flow of ideas, which the internet and ICT have pioneered, to the disadvantage of most users, including those in education. It will benefit the few to the disadvantage of the many.

Tim Pearson, CEO of RM, was talking to George Cole

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