Patents, copyright or something new for computer software protection?

Today this blogger came across an interesting article published on the New Scientist's website, entitled: "Should business be allowed to patent mathematics?" Beginning with the philosophical question of whether mathematics is invented or discovered, the article quickly moves to the real reason that some argue that mathematics should be patentable: money. In particular the article asks, should computer software be patentable?

Patents are granted for inventions, and because most mathematical formulae are deemed to be abstract ideas rather than inventions, formulae are not patentable in many countries. An express exclusion of computer software from patentability is provided for both under the European Patent Convention (EPC) and the UK Patents Act 1977. The EPC tends to take a liberal approach to this exclusion whereas the UK tends to be more restrictive, making it difficult for owners of computer programs to be sure of what protection they will be afforded by patent law.

Copyright on the other hand is relatively straightforward: in the EU the Software Directive clearly states at Article 1 that: "Member States shall protect computer programs, by copyright, as literary works". Of course the protection offered by copyright is limited to original works, and protection extends only to the program exactly as it is written down. SAS v World Programming Ltd confirmed that neither the functionality of a computer program (i.e. the look and feel of the program when used) nor computer languages may be protected by copyright. Still the limited protection offered is clear, and in the UK copyright protection arises automatically without the need for an expensive application process as is the case for patents.

Computer software must be one of the few areas where patents and copyright overlap, making it interesting to look at the pros and cons of each type of protection. In particular the convergence of copyright with patents in the world of computer software indicates to this blogger that once again, we are trying to fit rules developed for art, music, scientific inventions and processes to the new world of computer science and the internet. The two do not always sit easily together so perhaps it is time for a new law, drafted specifically with the internet and computers in mind. What do readers think? Is it a question of square peg, round hole or can we (in common law jurisdictions at least) rely on case law to bring older legal concepts up to date?

More on television formats

Just a very short post to update you that, further to my post in July about CBS's claim that ABC's The Glass House television series format copied its Big Brother series, CBS has now dropped its claim.

According to Reuters, last week The Glass House ranked 87th most viewed television show (one assumes, in the US) with an audience of 1.59 million, whereas Big Brother had three episodes ranking in the top 15, each with more than 5 million viewers.

© Pat Dalton



CBS used the ratings as a basis for withdrawing its claim, saying that "The viewers have spoken and delivered the ultimate form of justice against The Glass House" and that "As a result, we filed in federal court this morning a voluntary dismissal without prejudice of our claims against ABC. The contract and trade secrets claims against former Big Brother producers for violating their confidentiality agreements will continue separately in arbitration."

Of course CBS reserves the right to re-file the claim against ABC, however for now the law on copying television formats is no clearer.

It is interesting that the IPKat has just reported on a German decision which addresses whether a European Patent for a telephone voting technique used on a television show was valid. The court held that it was not. The reasons given for the judgment have still not been handed down, however the IPKat has suggested that perhaps the attempt to seek protection of a television show format using patent law was deployed because the German courts had already denied protection using copyright.

This blogger can't think what patent CBS could try to file to protect Big Brother, and perhaps it doesn't need intellectual property protection if ratings continue the way that they have been going, however if any readers have other ideas on how television formats could be protected, or indeed whether they should be protected, this blogger would be interested to hear your thoughts.