Was Neues von Bessen

Heise berichtet von einer neuen Studie von James Bessen zu Software-Patenten

Laut seiner Studie beantragen die meisten Softwarefirmen nach wie vor keine gewerblichen Schutzrechte. Dafür beantragen einige Größen der Branche sowie Konzerne aus anderen Industrien umso mehr Softwarepatente.

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Where are ACTA’s “political corruption” provisions gone?

The July versions of the Anti-Counterfeiting Trade Agreement draft included political corruption measures in Article 3.3. to promote adhesion of prospecting nations to the agreement. The latest version of the draft Article 3.3 looks different:

ARTICLE 3.3: TRANSPARENCY/PUBLICATION OF ENFORCEMENT PROCEDURES AND PRACTICES
For the purposes of promoting transparency in the administration of its intellectual property rights enforcement system, each Party shall take appropriate measures, pursuant to its domestic laws and policies, to publish or make available to the public information on:
(a) procedures available regarding the enforcement of intellectual property rights including competent authorities for enforcement of intellectual property rights and contact points for assistance;
(b) relevant laws, regulations, final judicial decisions and administrative rulings of general application pertaining to enforcement of intellectual property rights; and
(c) efforts to ensure effective enforcement and protection system of intellectual property rights.

ARTICLE 4.3 is the new Article 3.3

At first sight the provisions seem gone in the 25 Aug draft. But now consider Article 4.3 where we find the political corruption measures in their diplomatic beauty:

ARTICLE 4.3: CAPACITY BUILDING AND TECHNICAL ASSISTANCE
1. Each Party shall endeavor to provide on request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance in improving enforcement of intellectual property rights for Parties to this Agreement and, where appropriate, for prospective Parties to this Agreement. Such capacity building and technical assistance may cover such areas as:

(a) enhancement of public awareness on intellectual property rights;
(b) development and implementation of national legislation related to enforcement of intellectual property rights;
(c) training of officials on enforcement of intellectual property rights; and
(d) coordinated operations conducted at the regional and multilateral levels.

2. For the purposes of paragraph 1, each Party shall endeavor to work closely with other Parties and, where appropriate, countries or separate customs territories not a Party to this Agreement.
3. Each Party may undertake the activities described in this Article in conjunction with relevant private sector or international organizations. Each Party shall strive to avoid unnecessary duplication of the activities described in this Article with respect to other international efforts

Article 4.3 a) apparently overlaps with 3.4, which demonstrates us the remaining immaturity of the 25 August draft: In Article 3.4 we find provisions for moderate participation in public opinion building, of course a deviation from the principle of normative individualism:

ARTICLE 3.4: PUBLIC AWARENESS
Each Party shall, as appropriate, promote the adoption of measures to enhance public awareness of the importance of respecting intellectual property rights and the detrimental effects of intellectual property rights infringement.

Political Corruption decoded

In a public discourse it is common that angry crowds describe their governments as corrupt, swear on their government policies. That is not what I am talking about here. That would be emotional ranting but not actual political corruption. The case here is different, and  it is a clear case. The language was largely borrowed from the so-called development agenda process at WIPO.

Article 4.3 is a blueprint for political corruption.

• ‘Technical assistance’ for ‘development and implementation of national legislation related to enforcement of intellectual property rights’ is a diplomatic cover-up term for imposition of laws.
• ‘Capacity building’ means bribes and
• ‘enhancement of public awareness on intellectual property rights’ undue interference in the inner affairs of other states by means of propaganda.

Political corruption is subject to international and regional regulations which mostly stem from the United Nations Charter Article 2 fundamental principle, political independence of a state. The Council of Europe Criminal Law Convention on Corruption Article 6 mandates contracting states to establish political corruption as a criminal offence under domestic law when involving any person who is a member of any public assembly exercising legislative or administrative powers in any other State. Precisely, when committed intentionally:

the promising, offering or giving by any person, directly or indirectly, of any undue advantage to any of its public officials, for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions.

and

the request or receipt by any of its public officials, directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions.

Exactly that is what “technical assistance” and “capacity building” is about. These legal principles against corruption make sense. It is not upon us to participate in “development and implementation” of national laws by non-domestic legislatures or interfere otherwise in the inner affairs and political deliberations of those nations. I would like to see that fundamental principle preserved.

Commissioner de Gucht raises “public awareness”

Commissioner Karel de Gucht who bears the political responsibility for the ACTA process on behalf of the European Commission currently makes headlines in European mainstream news media with his antisemite remarks. It is likely that his current scandal would overshadow the ACTA deliberations in the European Parliament.

Wednesday, 8 September 2010 Final draft agenda 39k
09:00 – 11:50 Debates
Conclusions of the special ECOFIN Council meeting of 7 September
Protection of animals used for scientific purposes
Elisabeth Jeggle A7-0230/2010
Ongoing negotiations on the Anti-Counterfeiting Trade Agreement (ACTA)

I sincerely hope de Guchts media scandal won’t distract from the need to pay close attention to the radical and revolutionary policy proposals of the ACTA process driven against the ordinary democratic process in the participating nations. Contrary to popular opinion “ISP liability” is just one small item on the maximalist negotiations table.

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Prof. Correa in Munich – Jul 19 2010

Got the following invitation today, Correa is an excellent expert. Generally the seed patent groups are a bit detached from deep knowledge about the patent system and thus easily dismissed by institutional players. But they generate a lot of public buzz with their popular seed patent cases.

Public Conference
PATENTS ON SEEDS : THE TURNING POINT?
Munich, Germany, July 19th 2010; 10.15 am to 3.15 pm
 
In the past decade, an increasing number of patents on plants and animals have been granted, especially in industrialised countries. The negative impacts of these patents on farmers, on breeders and on innovation have became more and more evident during the last years, as has the patents’ contribution to market concentration. There is a growing rejection of these patents by NGOs, farmers’ organizations, breeders and even governments. The conference “Patents on Seeds – The turning point?” shows current trends, highlights the negative impacts of the current patent system. Conference participants will discuss what the necessary changes are and what the possibilities are to effect such changes. .

Languages/Translation: English, French, German, Spanish

Venue: Kolpinghaus München Zentral, Adolf-Kolping-Strasse 1, 80336 München; 10 minutes walking distance from the central train station. See http://www.tagungen-muenchen.de/lageplan/ For more information about accommodation in Munich: http://www.muenchen.de/Tourismus/6942/index.html

Registration: Online registration at www.evb.ch/en/patentsconference. Please register before July 12th.

Registration Fee: 25 Euro, including a lunch snack. To be paid on arrival.

Agenda:

10:15 Welcome
10:30 Carlos Correa (University of Buenos Aires, Argentina); worldwide trends on patents on seeds
11:10 Guy Kastler (Via Campesina, France); The impact of patents and plant variety protection on farmers
11:40 Niels Louwaars (Wageningen University, The Netherlands):); “The impact of patents on breeders and innovation and policy options to solve the problems.”
12:10 Christoph Then, Ruth Tippe (No patents on Seeds, Kein Patent, Germany); The Broccoli Case – and why the upcoming decision of the enlarged board of appeal is important.
12:40 lunch
13:30 Wilhelmina Pelegrina (Searice, Phlippines); Participatory plant breeding – Alternatives for innovation
14:00 Panel with all Speakers: Needs and strategies to change the current patent system
15:00 Summary and Goodbye
15:15 End of the Conference

For any questions regarding the conference please contact: nopatentsonseeds@gmail.com
Organisers: Greenpeace, Kein Patent auf Leben!, Misereor, EvB, Swissaid, Utviklingsfondet

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EU-INDIA policy laundry or: ACTA as it was meant to be

Mayday! (doom mongering)

It is may. Mayday for democracy and internet freedoms. I just stumbled upon a weird document. I have no idea where the released document originates from, if its an authentic governmental negotiations document release, no reason to dispute that, have a look, simply outrageous. According to the URI it was put online only this month by Techrights.  Recently I often mentioned the Anti-Counterfeiting Trade Agreement (ACTA), a plurilateral IPR agreement negotiated by some industrialized nations.  The ACTA drafts are a harmless Nagasaki-style menace compared to the H-Bomb-style proposal, a EU-India ipr agreement draft document. Appears to be part of a “dooms day machina” for democracy.

EU-India and the ACTA wolf

To me the document lets you view an evil wolf behind the ACTA, less window dressing, less constraints, focus on substantive law, not just on enforcement, what EU trade administration really had in mind before ACTA was publicly exposed. ACTA is dramatized by NGOs into an attack on the internet. Others criticise a lack of transparency. ACTA deserves better public scrutiny. It is not at all an internet agreement, it affects e.g. access to pharmaceuticals for developing nations.  With so much public awareness cast on ACTA an institutional aspect is hardly understood: The Anti-Counterfeiting Trade Agreement (ACTA)  is parallelized by bilateral trade talks with so called “problem countries”, among them India with its strong generic pharma industries, but also Korea and others. The bilateral agreements are negotiated by virtually the same few persons responsible for ACTA. EU-India is bilateral, two negotiating parties: EU (trade department) and India (trade department). It is far easier to negotiate bilateral agreements than plurilateral agreements, and certain dangers stem from that.

Backroom deals for billions of people

For European citizens the domestic effects of a “bilateral agreement” are exactly the same as of a plurilateral or multilateral one.[*]. Trade negotiators negotiate, legislators are asked to rubber stamp [+]. Provided the measures don’t get rubberstamped via ACTA (because parliament spotted it) administration can try again with bilaterals as EU-Korea, EU-India, EU-China, EU-Switzerland, EU-Bahamas, EU-Fiji, EU-Tschingbimbistan. While ACTA receives a lot of attention now (“light” which puts an end to the vampires, as J. Zimmermann of Quadrature coined their advocacy method), EU-India does not attract much debate and attention. An agreement which affects the legislative environment for billions of people, with no turning back.

With teeth

For EU anti-internet backdoor laws you don’t need ACTA, EU-India is sufficient to get criminal sanctions (Art 34), ISP liability (Art 35) and border measures (Art. 36), DRM protection and lots more. Of course all this is not in the existing EU legislation (“acquis”) . As an oddity the Techright document also refers to the idiosyncratic EU database copyright, an EU legislative failure as the Commission admitted in its policy review. The proposal exports these rights to India, too.

When Parliament insisted on internet freedoms for ACTA and rejected the three strikes proposals, the Commission pretended no one’s ever proposed that, the Commission publicly attacked those who mislead made the representatives aware of it. What we find in the EU-India document is an impression of ACTA as it was meant to be.

No one depends on ACTA

When the interested public and Parliament fails to spot undesirable measures in ACTA (cast light on it) we’ll get it anyway, sneaked through a bilateral route, because Commission trade specialists want it so. Domestic effects of institutional activism and forum shopping. The process demonstrates us how trade policy severely undermines parliamentarian democracy when trade administration steps into merely regulatory matters, legislation not trade. I hate to admit that but maybe the globalisation critics were right with their fierce criticism of the EU- “Global Europe” strategy spirit.

More EU-India

As I wrote above, I cannot confirm if the document was authentic but I found some background documents:

• EU-Commission’s press release about these negotiation (2007):

“On 28th June 2007, the EU and India began negotiations on a broad-based bilateral trade and investment agreement in Brussels, Belgium.”

• Commissioner De Gucht speech 4 Jan 2010: “We must complement the multilateral system by strengthening key bilateral and regional relationships. This is because bilateral agreements can go further and faster in promoting openness and integration, by tackling issues which are not ready for multilateral discussion and by preparing the ground for the next round of multilateral negotiations. Many key issues, including investment, public procurement, competition, intellectual property, …, can be addressed in such agreements. This would mean concluding Free Trade Agreements or similar types of agreements with amongst others India, ASEAN countries, Ukraine, Canada, Euromed, but also Mercosur.”
• Commissioner De Gucht about the agreement, Indian television, mentions the need to address “non-trade issues”. In his mind the term comprises issues like “Climate Chance” and “Human Rights” [x] but IPR aspects in the TechRights document are also not trade-related but legislative.
• Aid agencies on EU-India: Aids, not internet, EU-India may hinder access to essential medicines: “In recent years, India has become “the pharmacy of the developing world”. Ninety-two percent of people living with HIV on treatment in low- and middle-income countries currently use generic antiretrovirals (ART), mostly manufactured in India.”

[+] Commissioner De Gucht in Frankfurter Allgemeine stresses that Parliament’s role is just approval and assumes institutional legitimacy for the Commission like in a nation state: “In einer Demokratie muss das Parlament bei der Handelspolitik mitreden. Auf der anderen Seite muss klar sein, dass nicht das Parlament die Verhandlungen mit unseren Handelspartnern führt, sondern die Kommission. Das Parlament wird über den Fortgang der Verhandlungen informiert und kann dann am Ende “ja” oder “nein” sagen, mehr nicht. Das ist bei internationalen Verhandlungen in allen Staaten[!] so.”

[x] A classic Red Herring power technique, in order to avoid procedural criticism, that a trade process relates to non-trade issues, they shift the debate to other non-trade policy issues which are expected to be backed by potential opponents of the agreement.

[*] Bilaterals are a dangerous “policy laundry” road for our nascent EU parliamentarian democracy.

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Amicus letter of Donald E. Knuth

Prof. em Donald E. Knuth, the algorithm pope, sent an Amicus Curiae letter to the European Patent Office in the case G03/08 and expressed his desire to “innovate in peace”:

Dear Ms Brimelow,
A friend in Europe just told me that you are interested in “amicus curie” letters to explain why so many computer scientists around the world have long been alarmed about patent trends, and that you hope to receive them by 30 April. I hope this letter reaches you in time; I could not send it by FedEx, having no complete address. Enclosed is a copy of a letter that I wrote to the US Patent Commissioner in 1994; I believe it is self explanatory- Also enclosed is the transcript of a talk I gave at the Technical University of Munich in 2001, where I gave a somewhat more nuanced view of extremely unusual cases in which algorithms or even mathematical constants might conceivably be patentable in my view. IThe latter remarks occur near the end of a rather long lecture; I have highlighted the relevant information, on page 324, for your convenience.

Basically I remain convinced that the patent policy most fair and most suitable for the world will regard mathematical ideas (such as algorithms) to be not subject to proprietary patent rights. For example, it would be terrible if somebody were to have a patent on an integer, like say 1009, so that nobody would be able to use that number “with further technical effect” without paying for a license. Although many software patents have unfortunately already been granted in the past, I hope that this practice will not continue in future. If Europe leads the way in this, I expect many Americans would want to emigrate so that they could continue to innovate in peace.

His and many other Amicus Curiae (~90) Amicus letters are published on the EPO website.

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