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The importance of the public domain, software patents et alia

  • To: Multiple recipients of list <epc-l@iucr.org>
  • Subject: The importance of the public domain, software patents et alia
  • From: Brian McMahon <bm@iucr.org>
  • Date: Mon, 7 Oct 2002 16:29:26 +0100 (BST)
Dear Colleagues

An interesting presentation at the CODATA meeting has prompted me to send
this open letter to a number of people with a potential interest in the
IUCr's position regarding intellectual property and other rights issues.

I have been eavesdropping on the discussions within the Computing Commission
on the desirability of a statement expressing the Union's (or at least the
Commission's) views on software patents
(http://www.iucr.org/iucr-top/lists/compcomm-l/msg00008.html). The consensus
has been that an early draft struck too negative a tone, and I think I would
go along with that. The speaker at CODATA, Pamela Samuelson of the Berkeley
Center for Law and Technology, took as her theme "Preserving the Positive
Functions of the Public Domain in Science", and came up with some ideas that
may provide a more fruitful direction for the Union's positive advocacy.

She began by making the point that patent and copyright were inventions
designed in part to safeguard the inventor or creative agent (what we
would now describe as "protecting his/her intellectual property rights"),
but also to allow a controlled disclosure of information that could
otherwise be safeguarded by being retained as a secret. In the case of a
patent, the inventor was granted exclusive rights to use of the invention
for a set (and not indeterminate) period, but the payback for that
exclusivity was the requirement to make public the invention and "how to
make", and at the time of patent expiry the complete intellectual content
would enter the public domain. So patents are not necessarily all bad;
they lead to disclosure, albeit with time limits on usability.

Parenthetically, I note her point that "ideas, scientific methods and
principles" are not patentable, and suggest that (somehow) more scrutiny
should be brought to the granting of software patents on software, for it
seems to me that much software is just a formal algorithmic representation
of ideas. When I read through the documents relating to the STAR File patent
application made by the IUCr, I found it very difficult, not being a lawyer,
to understand how the descriptions of the STAR File process could be
interpreted as other than the expression of a set of ideas.  (I also think
that the Union's pursuance of a patent for STAR was counterproductive, since
it raised needless concerns especially among the US bioinformatics
practitioners who had a cultural paranoia about intellectual property rights

However, to return to the talk... there is currently a case before the US
Supreme Court (Eldred v. Ashcroft) in which a recent ordinance extending the
duration of assigned copyright is being contested as anti-Constitutional. It
appears that a key point in the legal arguments turns on whether the public
domain has value. There are those who contest that something in the public
domain is an orphan, without responsible custodians to guarantee its
preservation; on the other hand, it is argued that the public has a right of
common use to any such information. As part of the US legal process,
interested parties may deliver what are called "Amici Briefs"; among those
presenting a brief in deprecation of the value of the public domain is the
Walt Disney Corporation. The speaker made the point that no representation
was made by the scientific community, and it is perhaps the scientific
community that is currently best placed to argue the benefits of
public-domain knowledge and data availability. Her comment was of course a
veiled criticism of CODATA's lack of involvement in the case, or more
generally in its failure to advocate the importance of the public domain as
a medium for the dissemination of information and data.

So, one possible line of discussion to follow in the Computing
Commission's redrafting of a statement of principle is an elaboration of
the benefits to science of placing software ideas within the public
domain; and if the Commission is so minded, some endorsement of the
principles of open software development that lead to the same benefits
might be in order. So, that is my first suggestion.

There was also some discussion after that talk about copyright, and
the point was made that increasingly authors are not transferring
copyright in their articles to journal publishers, but rather
explicitly retaining their rights and granting a license to the
publisher. It seems to me that this would be something of a nuisance
to us (i.e. the IUCr as publisher), because it could provide us with
less freedom to use articles in collections, promotional works etc;
and that in fact authors need not worry about transferring copyright
to us, since we explicitly license back automatically rights of fair
use and redistribution (in the case of electronic reprints). My second
suggestion then is that we review our public wording on the Transfer
of Copyright form and in Notes for Authors, in case it is appropriate
to make more explicit what rights the author in effect retains. (It
may well be that our existing documentation is entirely appropriate,
but occasional regular reviews are still worthwhile.)

My third point is a little more general. It becomes clear - even from
reading the newspapers - that the evolving practices of IPR legislation
are full of pitfalls and dangers for the exercise of science in the way to
which we are accustomed. An example mentioned at CODATA is a recent case
in Germany arising from the EU Database directive. A conclusion from the
case is that simply linking to data on someone's web page may breach their
rights of "sui generis" control of that data, and could be ruled illegal.
Now, in most of these cases cited as scare stories, they do not
necessarily portend the end of the world, because separate negotiations
for licensing arrangements, transfer of rights or constructive exceptions
can always  be entered upon by the interested parties. On the other hand,
such individual negotiations take time and money, and the community would
of course benefit if the appropriate exceptions or special considerations
were already in place within the published legislation. 

Given that these are concerns of the international community and are
relevant across the sciences, it is surely best that proper representation
should come through bodies such as CODATA and ICSTI, and I am encouraged by
the fact that both bodies appear to take their responsibilities in this
direction very seriously. But, as demonstrated by the example of the missed
amici briefs in the case cited above, they may not be as effective as they
could be. (I think there is no reason for strong censure of CODATA in this
matter - the usefulness of making a formal intervention in a case that began
as a rather small-scale affair arising from a non-scientific application has
only become apparent with the all-seeing eye of hindsight.)

So what, if anything, should the IUCr be doing in this environment? Is it
sufficient to rely on the existing structures to inform the Executive and
implement the will of the Union, or is there a need for an additional
machinery - a new committee - to watch over this aspect of the Union's
responsibilities? On the one hand, the electronic publishing committee
already includes the CODATA and ICSTI representatives, the managing editor,
and representatives of the Computing Commission, all of whom are involved
in the areas where intellectual property right concerns are currently most
relevant. On the other hand, (i) representation is not complete - the
database committee is not represented (except by the CODATA rep ex
officio); (ii) the case might be made that an advisory committee could
have a wider portfolio than intellectual property rights: it is
conceivable that the Union might have interests in rights of travel,
freedom to practise and other human rights; (iii) the existing members of
the CEP are technical people, without the administrative experience say of
the executive secretary, and certainly without legal experience and

I do not wish to argue strongly for additional bureaucracy (and ultimately
expense). I believe that the CEP already operates at a certain level of
awareness of these issues, and is reasonably effective in tracking
developments.  However, the CEP is already fully occupied in attending to
the technical and business issues of electronic publishing, and I think
there is a risk that it might overlook relevant issues to do with
legislation and rights protection simply because it cannot focus on
everything at once.

So I simply raise the question here of whether the Union would benefit
from the establishment at this time of a legal/rights committee, and
invite comment from the addressees.

If you have read this far, thank you.


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