25 May 2012

Anti-Software-Patent Campaigners count on François Hollande

In our today's article "Anti-Patent Campaigners put their trust in François Hollande as EU Council attends to Unitary Patent Court again" on the ksnh::law blog we attend to the reopening of negotiations on the Unitary Patent Court at next week's Competitiveness Council meeting on May 31/June 1 (see draft agenda, item 19) and the influence anti-software-patent campaigners such as the French April group may have on the process now as socialist François Hollande took office as the new President of France.

In fact, Fleur Pellerin (@fleurpellerin), responsible for the digital economy in Hollande’s campaign team and now Deputy Minister responsible for SMEs, gave some disturbing answers (pdf, french) in a tendentious pre-election questionnaire regarding issues like computer-implemented inventions, the EPO, or the planned EU Unified Patent Court:

  • The patentability of software would induce a partitioning of innovation that would be harmful to the ecosystem seen in its digital together. I am therefore opposed to the patenting of software.
  • It is essential that the patent office’s practice is consistent with what tax payers and the public expect of the patent system
  • reform of the control structures of the EPO appears to be required. The European Union as the major legislator of innovation policy in Europe should have more control.
  • “I am unhappy with creating specialized courts entrusted to ”expert judges” from the group of patent attorneys.
  • It has already been found in the US that the patent chambers of the CAFC unwarrantedly extended the scope of patentability to sectors which the patent system was not made for.
  • It is unjust that patent offices and firms who should execute the industry policy as set by the legislator can exercise legislative power by defining this policy themselves
Those pre-election opinions of Ms Pellerin and Mr Hollande pretty much sound like what Lionel Allorge, President of the April group, expects of Mr Hollande at the coming Competitive Council:
“With this first Competitiveness EU Council, the French president and the government have a unique opportunity to act against software patents and on the legal uncertainties that threaten Free Software as well as many companies, especially SMEs and SMIs, by preventing them from innovating. [...] An overhaul of the entire European patent system is essential to avoid getting into a situation similar to that of the United States, in which millions of dollars are wasted because of an out of control patent system, and to ensure a democratic control over the patent system.”

20 May 2012

Amendments to the German Patent Act (PatG)

Should you be interested in the latest amendments to the German Patent Act (Patentgesetz, PatG), you may have a look at our ksnh::law blog, where we provide an introduction in both English and German:

The respective proposal of Federal Minister of Justice Sabine Leutheuser-Schnarrenberger (Liberal Democrats/FDP@sls_bmj) was approved this week by the Federal Cabinet and will enter into force as soon as the Federal Parliament ("Bundestag") approved is as well. The purpose is to reduce bureaucracy and providing for more flexible and cost-efficient proceedings before the GPTO.

For applicants, basically three amendments are good news:
  1. After the introduction of the electronic case file system ElSA at the GPTO the Amendment clears the path for public access to the electronic ElSA files, not less than 9 years after the EPO introduced online file inspection.
  2. In future, the search report will provide a full opinion on patentability (novelty, inventiveness, etc.).
  3. The term for filing a translation of application documents filed in a foreign language is prolonged from 3 to 12 months, in case the application is filed in English or French. 
As the GPTO will nevertheless draw up a search report even if the translation of an English or French application has not yet been submitted, English and French filers may want to request a prior art early enough e.g. upon filing) and obtain a comparably cheap (300 EUR) opinion on patentability from the GPTO without the need of translating their application 

18 May 2012

The Copyright Controversy in Germany: 'We are the Autors' versus 'We are the Citizens'

On May 10, 2012, renowned German weekly quality newspaper 'Die Zeit' published an appeal against theft of intellectual property with the flashy title "Wir sind die Urheber!" (we are the authors), a clear - and surely wanted - allusion to the famous battle cry "Wir sind das Volk!" (we are the poeple) of East Germans during the uprise against the former GDR regime in 1989/90 which soon lead to the collapse of the East German state and later to the German reunification.

The Appeal, coordinated by 32 years old German author and producer Matthias Landwehr and meanwhile undersigned by more than 4.000 German authors, screenplay writers and other creative artists, is - legitimately - inteded to emphasise author's rights and to defend their copyright-based commercial interests in the ongoing copyright debate driven by the internet-affine Pirate Party (Piratenpartei) and its anti-copyright attitude aiming at weakening copyright law and legalization free copying. The translated author's appeal reads as follows:
We are the authors!
Against intellectual property theft

As writers and artists, we follow the attacks against copyrights with concern and incomprehension. Copyright is a historic achievement of civil liberty against feudal dependence and it guarantees the material basis for individual creation.

The conflict of interest between authors and exploiters, as alleged in this context, draws  an absurd picture of our working conditions. In a society characterised by the division of labour artists and give the marketing of their works into the hands of publishers, galleries, producers and collecting societies, if they represent and defend their interests in the best possible way. The new realities of digitization and the internet do not justify profane intellectual property theft, or even to call for its legalization. On the contrary, it is necessary to strengthen copyright protection and adapt it to today's conditions of rapid and massive access to the products of intellectual labour.

Copyrigt law provides that we the artists and authors can live by our work and protects us all even against global internet corporations, whose business model accepts the disenfranchising of artists and writers . The everyday presence and the benefits of the internet in our lives cannot justify theft and is not an excuse for greed or stinginess.
The association of the autor's slogan to the politically and historically loaded parole "Wir sind das Volk!" is no coincidence and intends to emphasis the aspect of freedom of their matter by creating a - rather exaggerated one may say - link to political freedom movements like the French Revolution (cf. German dramtist Georg Büchner's 1835 novel "Dantons Tod" [Danton's death]) or the German Civil Revolution of 1884, the so called 'Märzrevolution' (cf. German poet Ferdinand Freiligrath's 1849 poem "Trotz Alledem"). In this regard, German readers may find the article "Geschichte eines deutschen Rufes" interesting. 

But this sort of construed historical legitimation of a modern concern is not reserved to authors and artists defending their personal rights by reminding us to the origins of (German) copyright law in the European freedom movements of the 18th and 19th century ("historic achievement of civil liberty against feudal dependence") resulting in the Berne Convention of 1886 as the first international agreement governing copyrights, but may also be utilised by modern "digital freedem fighters", as they may see themselves, and their political arm of the European Pirate Parties

Consequently, within a few hours after publishing of the author's appeal an opposing initiative satirising the first appeal in not less plain words has been initiated under the name "Wir sind die Bürger!" (we are the citizens). The translation of this pirate's appeal, as initiated by media educator and member of the Green Party Thomas Pfeiffer (@codeispoetry) who as a social media consultant is not that neutral but has to defend his business model as well, reads as follows:
With great concern we, the citizens follow the discussion about copyright and its enforcement on the internet. We do not want to abolish copyright. To the contrary, we want copyright to become fit for the future but that means that it has to converge towards social realities.

We support that people who want to make a living from their art and their creative work are provided with the conditions required to do so. These include
  • collecting societies,
  • terms of protection and 
  • payment models on the internet.
Each author should be able to decide for himself what should happen to their works - an what should not.  

The internet dramatically changes the framework for cultural creativity. Suddenly  copyright issues are relevant for all of us - even for lay people. [...] We, the citizens are exaggerated with the rules, if we get creative on the internet. At the same time, professional creatives are rightly outraged that their works are used without payment.

We must design the legal framework so that the interests of artists are respected - and that, at the same time, as many people as possible consider these rules fair and respect them. This is the only way to increase the acceptance of the value of copyrighted content!

We do not want that copyrights are enforced by unreasonable means. [...] We want a copyright an therefore hold out our hands to all creative people and their business partners. Let us join forces to look out for a solutions which equally respects the author's and artist's right of freely disposing of their works as well as the right of all people to live without repression and surveillance.
Moderate voices from politics. Since the two appeals articulate legitimate interests in a more or less reasonable way, most responses from either side were controverse but reasonable. For examample, an MP of the Green Party feared that the author's initiative would only increase the divide as in times of intenet-driven social upheaval intelligent copyright regimes are required insted, while representatives of the Pirate Party occasionally recommended to take the author's criticism seriously. The chairman of the conservative group (CDU/CSU) in the German Bundestag, Volker Kauder expressed his understanding that author's and musician's demand to protect their intellectual property also on the internet but also warned that the internet should not be regarded as an opponent of but as a chance for culture and creatives.

Radical positions. Some hardliners on the anti-copyright side, however, exceeded the framework of democratic discourse and only tried to destroy any discussion, such as those hackers of the Anonymous movement who perfidiously tried to compromise artists supporting the author's appeal by disclosing personal data on an internet pillory. Clearly, such practice demonstrates a totalitarian attitude aiming at muzzling and outlawing ideological opponents, this time authors and creative artists next time maybe ethical or religious minorities. A destructive attitude demonstarted also a  campaign called "Wir sind Filesharer" (we are file sharer) that openly manifests "we ... on your copyright, we ... on your law, we ... on your intellectual property", a slogan that appears to be the result of a consequent further development of the statements of Julia Schramm, an 28-years-old wanna-be leader of the German Pirate Party and egocentric writer of an "ego-novel" for which she collected a record breaking advance payment, who innocently confesses that she considers intellectual property "disgusting".

The role of the collecting societies. Based on the author's argument that copyright protects against global internet companies whose business models are based on disenfranchisement of artists and writers, the relationship between author's and collecting societies was addressed by assuming that the success of those copyright-ignorant business models may be a consequence of the collecting societies' inability to adapt to the internet age to the benefit of authors and artists.

In a position paper (in German) of the collecting society VG Wort, the current copyright regime is strongly defended:
"The author is the creator of the work. He is entitled to moral and exploitation rights. Use of works without permission of the copyright holder is illegal if not expressly permitted by law. Amendments and changes in work generally require permission from the copyright holder. What is allowed, however, is free usage of a work for creating a new independent work. In the digital world, we should stick to theses principles."
Questionable positions. In a much discussed blog post titled "You are not relevant to the system", prominent lawyer-blogger Udo Vetter, being well-respected among German pirates and their sympathisers, considered it wise to accuse the authors of taking themselves too seriously and to play off their concerns against the freedom of speech as he considers a free internet more important than the cultural contribution of authors and creatives:
"It is better if everybody can freely express his/her opinion online as compared to everything going down the drain just because a few writers think they have the unconditional claim on a solid livelihood against society."
Together with Thomas Stadler, another prominent IP-critical lawyer-blogger (internet law), Vetter took the somewhat creative position that social obligations of properly rights (in rem), as codified under Art. 14 (2) GG of the Germany Constitution ("Property entails obligations. Its use shall also serve the public good") would also apply to intellectual property (which might be true) even though it is the basic argument of anti-copyright campaigners that legal concepts from the material world like "ownership" or "theft" cannot be transferred to the digital world as something like  "intellectual" property simply does not exist.      
Vetter: "The controversial concept of intellectual property is so naturally taken for granted as the assertion that making a digital copy is "profane theft". Those who take maximum positions very self-evidently should not be surprised if the fragility of such positions may be demonstrated by a few words only. Thomas Stadler has already done so on his blog with some relevant arguments regarding the social obligations of property.
Stadler: "Those who rely on property rights must also recognize that the property is subject to the social obligations. Since the creation of a mental work also is a social process - another fundamentally difference over tangible property - the social obligation of "intellectual property" is even more pronounced, not least because of its enormous importance for education and culture."
What does Stadler mean by "creating a mental work is a social process"? Is that meant to be an ideological basis for expropriating creative artists since, in reality, their works are only results of social processes visualised by the artist who only acts as a medium? Julia Schramm would readily support such approaches as for her artists only are "filters" for what is in the world and belongs to all. That in fact immediately results in the concept of "publicly owned art" (volkseigene Kunst) which was a general doctrine in the communist German Democratic Republic (GDR) and leads us back to the historic slogan "Wir sind das Volk".

All this was commented by Christoph Nebgen, a third lawyer-blogger, in a posting titled "with all due respect, dear colleagues" who feels reminded by Stadler's social-process-argumentation of the terminology of totalitarian bureaucratic states:
An artist reflects the social reality as much or as little as everyone else. He creates a piece of art, just like an engineer creates a technical device, a chef cooks a soup or a hairdresser cut the hair. [...] The quoted argument, however, would also justify stealing a flat screen in a shop, since its design only represents a reflection of social reality. Whether this reflection is manifested in glass and plastic, or the sound of a melody or a clear soup, a qualitative difference does not exist.

[...] Vetter [and Stadler] - you may not believe it - even refer to the social obligation of property in order to negate the author's rights to their works. This is like I would be allowed to live in my neighbor's house, just because Art. 14 GG requires a social obligation of property. In fact it does so, but not to give it away.

Instead, the allegedly free internet shall now represent a contribution to culture. However, the internet is about as free as the GDR was democratic. Or does the term freedom lately refer to the internet monopolies of Facebook or Google?
But what does the German Piraty Party actually say to all this? Their latest manifesto demands in the section "copyright and non-commercial reproduction" the following:
[...] The present legal framework for copyrights limits the potential of the current development, since it is based on an outdated concept of so-called “intellectual property” which opposes the goal of a knowledge and information society.

Technical systems which obstruct or prevent the reproduction of creative products ("copy protection, DRM, etc.) create artificial scarcity in order to turn a public good into a private one for economic purposes. The creation of artificial scarcity purely for economic purposes seems immoral to us, therefore we reject these technologies. [...]

[...] the reproduction of digital products cannot be restricted in a technically sensible manner and the widespread enforcement of prohibitions in the private sphere has obviously failed [...]. We are convinced that non-commercial reproduction and use of creative products should be seen as a natural process, which does not affect the interests of most originators in a negative manner. [...]. We therefore demand that copying, providing access to, storing and using creative products for non-commercial purposes must not just be legalized, but actively promoted to improve the public availability of information, knowledge and culture, because this is a prerequisite for the social, technological and economic development of our society.
Please judge for yourself, but according to my understanding, this means that once an author publishes his work on the internet, everyone should have the right to copy, use, and redistribute it  for non-commercial use. This is exactly the "for free culture" the author's appeal criticises.

It is a fact that something that costs nothing is not worth anything. In this sense, the pirate movement, their anti-copyright apologists, and their voters and supporters in fact demand to fight intellectual property by intellectual dispossession of authors and artists (and later maybe also of patent owners).

Maybe it is true what some political observers notice: There has never been such a high level of public contempt of artists in (West-) Germany after the war.

10 May 2012

A Matter of Confidence: The Right of Access to Documents of EU Institutions

In the latest ksnh::law blog posting titled "EU About To Lock Away Their Documents More Easily Than Ever?" my colleague Axel Horns discusses the poor level of information transparency within the EU legislative process, starting from Article 2 (1) of the Regulation No 1049/2001 of the European Parliament and of the Council of May 30, 2001 reading

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.
Clearly, important EU political actors try to create as little publicity as possible by amending current transparency rules.

Prominent examples of the EU's closed-door approach towards legislative and administrative decision-making from the IP field include
The latter aspect was illustrated by Antonio Pizzoli in a comment referring to the following EU documents classified LIMITE, all of which being crucial to the future EU Unified Patent Court:
  • Draft agreement on the European Union Patent Jurisdiction - compatibility of the draft agreement with the Opinion 1/09 (21.10.2011, pdf)
  • Draft Agreement on the creation of a Unified Patent Court - Preparation of the Competitiveness Council on 5 December 2011 (01.12.2011, pdf)
  • Draft Agreement on the creation of a Unified Patent Court - Presidency compromise text (06.12.2011, pdf)
Before this background, it will be very interesting to see what the soon to be expected decision on new EU freedom of information rules will look like.

From a more global standpoint, one thing is crystal clear: The ongoing deep crises of the European Union is not only a monetary and financial crisis but also a crisis of confidence, which is enhanced by the EU's ongoing attempts to as muchg as possible exclude its citizens and the informed public from the decision-making process. 

While many European citizens might not be overly interested in EU legislation and thus just don't care about the above-sketched problem, especially those benevolent, multi-lingual, politically and culturally skilled and high-qualified people are discouraged by the above practise that are urgently needed by the EU as multipliers to increase the acceptance, respect, and confidence among its citizens. 

(Photo: (C) 2009 by glsims99 via Flickr and licensed under the terms of a CC license)