Software: Patents and copyrights

Source: APC
The use of free software in West Africa would represent an opportunity to reduce the digital divide with the South writes Ramata Soré in this article previous to the Panafrican conference on free software, from March 16 to 20 2008 in Dakar, Senegal. [see more]
Copyright laws are designed to protect the expression of content, as opposed to content itself. Protected works can express ideas, knowledge or methods that can be used freely; what copyright laws prohibit is the partial or full reproduction of such works -whether modified or not- without consent. In opposition to the copyright model stands the patent system, which grants monopoly rights over an invention (for a period of approximately 20 years, depending on the country). Patent owners decide who can use their inventions and set a price on that use.

Although advocates of the patent system claim that patents promote innovation by making the invention known to the public, voices are increasingly being raised against this system, since only large corporations can afford the costs involved in patent maintenance (including the legal costs of court proceedings to prevent patent violation). Moreover, historically, patents have been used to prevent the development of what might be seen as potential competitors of established technologies owned by dominant companies in a given sector.

The debate over software patentability and its impact on technological innovation is not new. In the year 1994, the Uruguay GATT Round closed with the inclusion of an agreement on trade-related aspects of intellectual property rights (TRIPS). Most industrialized countries (in particular, the United States and Japan) played an instrumental role in the adoption of this agreement, which must be compulsorily enforced by all member countries of the World Trade Organization (WTO) (73% of which are developing countries). In particular, article 27.1 of the TRIPS agreement has been construed as a legal means to justify the patentability of a range of innovations, including computer programs. The fact that many observers call for a full revision of this agreement does not deter large software corporations from joining influential groups of lawyers specializing in intellectual property or lobbying some governments to advocate in favour of software regulation in international forums, such as the WTO, or to push patent offices to adopt measures in this direction. These offices are not financed by public funds. On the contrary, they derive a substantial part of their income from patent maintenance costs, a considerable percentage of which comes from a few large corporations.

In addition, the process of granting software patents has lacked transparency. In Europe, for instance, even though patent issues were regulated by the Munich Patent Convention, which established the European Patent Office (EPO) and expressly prohibited software patenting, thousands of computer program-related patents have been granted by that same office. This brings into play issues such as what innovations may be considered industrially applicable, definitions that can vary from country to country, and can depend even on linguistic and terminological considerations.

In 2002 the European Commission submitted a proposal for a Directive "on the patentability of computer-implemented inventions" which would legalize software patents in Europe. Civil society organizations joined forces to voice their opposition against this initiative, which would have implemented in Europe a system similar to the one in force in the United States and Japan. On 24 September 2003, the European Parliament voted to incorporate a set of amendments into the Directive, reaffirming the non-patentability of programming and business logic and upholding freedom of publication and interoperation. Still, the debate in Europe with regard to software patents is far from being over.

Furthermore, if we take a look at how Southern countries are affected by the expansion of "Intellectual Property Rights" (IPR), spurred by industrialized countries through the World Intellectual Property Organization (WIPO), we can see that far from encouraging direct investment and stimulating transfer of technology, an illusion of such phenomena is created through the movement of funds and technology to and from parent companies of multinational corporations and their foreign subsidiaries. The smallest companies, for their part, are forced to allocate a significant portion of their budgets to paying for licenses, thereby greatly curbing local development initiatives. Moreover, when arguments are wielded in favour of extending IPRs to scientific and educational information, which is currently in the public domain, the future of the least industrialized countries turns even bleaker, as they risk being trapped in their role of consumers of Northern-produced technologies.

In August 2004, governments of Southern countries, led by Brazil and Argentina, presented a proposal for a Development Agenda at WIPO. Some of the proposals specially addressed the concerns of developing countries, while others aimed to redirect WIPO to give more weight to general consumers’ and public interests, including patents and copyrights. On October 2004, the WIPO General Assembly issued a decision that creates a rapid evaluation of the Development Agenda. This opens an opportunity to promote changes in WIPO's policies. Prior to the General Assembly meeting hundreds of nonprofits, scientists, academics and other individuals had signed the "Geneva Declaration on the Future of WIPO," which calls on WIPO to focus more on the needs of developing countries, and to view IP as one of many tools for development - not as an end in itself.

When ICTs are being consolidated as a means to share knowledge and information, limiting access to these technologies is seen by many as a violation of fundamental rights. The future of the flow of information and communication in the South largely depends on finding solutions to these issues, which should be at the heart of the debate around ICTs global governance at the World Summit on the Information Society (WSIS).
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Thursday, March 27 2008
Software: free west Africa?
(Source: APC)
Thursday, May 25 2006
Brazil’s leadership in Intellectual Property and Free/Open Source issues
more on this issue

Software patents and copyright: Background information

Workshop on Asia and Commons

Free and Open Source Software: A Blind Alley for Developing Countries? (University of Manchester)

Myths of Software Development in Developing Countries (University of Manchester)

Issues in IP management to support open access in collaborative innovation models (First Monday)

Intellectual property and compatibility standards: A primer (First Monday)

Open to development: Open-Source software and economic development (APC Africa ICT Policy Monitor)

How intellectual property rights can obstruct progress (Science and Development Network)

Innovation, information technology and the culture of freedom (Projeto Software Livre Brasil)

Open Source Software: Free provision of complex public goods (

Software Patents: Questions, Analyses, Proposals

Intellectual property and computer software, a battle of competing use and access visions for countries of the South (

Software patents: A really bad idea (ZDNet)

Issues in the regulation of Intellectual Property Rights, Computer Software and Electronic Commerce (

The political economy of Intellectual Property protection: The case of software (London School of Economics)

Alternatives to traditional copyright

Software: free west Africa? (APC)

Information society and Informationization in the Electronic age (Institute for International Policy Studies)

Transitioning to open access (OA) (First Monday)

Multi-nationals ignore SA patent law (Tectonic)

Tragedy of the FOSS commons? Investigating the institutional designs of free/libre and open source software projects (First Monday)

PS-OSS : A study about public sector involvement in open source software (The European commission)

Free/Libre and Open Source Software: Survey and study

Open Source Software: Strategic choice for developing country governments (I4D Online)

Innovations, commons and creativity: open source, biolinux and seeds (WACC)

BSD Licence

Labyrinth of Software Freedom (BSD vs GPL and social aspects of free licensing debate)

OpenContent License (OPL)


GNU General Public License

Creative Commons (CC)

The World Intellectual Property Organization (WIPO)

World Intellectual Property Organization (WIPO)

Intellectual Property on the Internet: A Survey of Issues (WIPO)

WIPO Development Agenda (Choike)

Other UN agencies

UNCTAD: Open Source Software key to bridging digital divide (UNCTAD)

UNHCHR: Intellectual property rights and human rights

UNESCO Free Software Portal

UNESCO: Copyright Bulletin

The debate in Europe

Foundation for a Free Information Infrastructure (FFII)

European Parliament says No to software patents (Foundation for a Free Information Infrastructure (FFII))

Petition for a Software Patent Free Europe

Free Software Foundation - Europe

EuroLinux Alliance

The File on Software Patents

Free Patents

Non-profit organizations involved

Free Software Foundation (FSF)

Brazil’s leadership in Intellectual Property and Free/Open Source issues (

Electronic Frontier Foundation (EFF)

Association for Progressive Communications (APC) - Internet Rights

Open Source Software Educational Society

The World Trade Organization (WTO)

World Trade Organization (WTO) (Choike)

Implementing TRIPs in developing countries (Third World Network)

Trade-related Aspects of Intellectual Property Rights (TRIPs) (WTO)

WSIS-related information

Civil Society Declaration to the World Summit on the Information Society

WSIS Civil Society Working Group on Patents, Copyrights and Trademarks (PCT)

Upstairs, downstairs: A perspective of the WSIS

Infopaper for the World Summit on the Information Society

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