| Editorial |
|
| Peer-Reviewed Articles |
-
Do Asian Nations Take
Intellectual Property Rights Seriously?
Assafa Endeshaw, p.166-179
The paper discerns three
main tendencies in current Asian IP law: an attempt by nations to
keep abreast of any additional demands of the industrial powers
and to introduce all manners of new laws or revision of old ones
considered to be important for foreign investors; a continuation
of Asian reluctance to confront foreign nations (chiefly the US
and EU) as regards the forms and contents as well as enforcement
of such laws; a desire to keep costs of the IP system down and
help local businesses benefit from better access to such a system.
-
The day after the
Computer-Implemented Inventions Directive: who won the battle
and when shall the war end?
Konstantinos Fotinopoulos, pp.180-196
This article follows the debate about the
patentability of software after the demise of the Computer
Implemented Inventions Directive, particularly exploring the
misconception that software is not patentable in Europe, and the
belief that this places the local software industry at a
competitive disadvantage and that it is a less attractive place
for investment compared to the US and Japan. The article
assesses whether there is indeed a need for a change in law or
in practice and if so, to ascertain the path that Europe should
follow.
-
Without Walls: Copyright Law and
Digital Collections in Australian Cultural Institutions
Emily Hudson and Andrew T Kenyon, pp.197-213
Digital communications
technologies are providing new means for museums, galleries,
libraries and archives to pursue their public interest missions,
including in relation to access. However, as practical impediments
to collection access change, copyright law poses significant
challenges to the development of digital collections. This article
uses recent experience in Australia to discuss copyright’s impact
on digitisation, and to explain why and how copyright has
influenced the cultural institution “without walls”. It also
describes recent amendments to Australian copyright law – in
particular, introduction of a flexible exception for some
activities by cultural institutions. This may represent an
important development in Australia, and offers relevant case study
internationally, for addressing copyright issues about digital
access.
|
| Analysis |
- Patenting programs as machines
Philip Leith, p.214-226
It is clear that
software is being protected in Europe. Not only is software
being protected, but business methods are routinely receiving
patent protection. Protection is being given when the applicant
succeeds in recasting the software invention as hardware device
or hardware device control. Thus, for example, in the recent
Aerotel appeal judgment in the UK, a business method described
in hardware terms was viewed as protectable but another business
method (Macrossan) couched in software terms was not.
The argument I wish to put forward is that the current approach
– which was originally set out in Vicom – has used a model of
invention in computing which does not reflect how the software
community views invention. Programs have been protected in the
guise of ‘devices’ or ‘machines’ rather than as programs. This
causes a mismatch between what should be protectable and what is
protected and, to an extent, explains much of the opposition to
software patents in Europe.
If software was to be examined and protected as software, would
the opposition be resolved? Perhaps, but to get that position
there remain specific problems to be overcome which concern the
nature and examination of software: this requires a radical
approach to cope with a radical technology before opponents
might agree that the patent system serves the software
marketplace.
- Keep on hacking: a Finnish court says
technological measures are no longer “effective” when circumventing
applications are widely available on the Internet
Mikko Välimäki,
pp.227-232
On 25 May 2007 Helsinki
District Court ruled that Content Scrambling System (CSS) used in DVD
movies is “ineffective”. The decision is probably the first in Europe to
interpret new copyright law amendments that ban the circumvention of
“effective technological measures”. According to both the Finnish
copyright law and the underlying directive, only such protection measure
is effective, “which achieves the protection objective.” This article
reviews the statutory background of the word “effective”, then moves
into the details of the Finnish case, and finally discusses its
implications and limitations. It is argued that the decisive argument of
the case may be universally applicable all over Europe, where the exact
language of the copyright directive has been implemented. Accordingly, a
protection measure is no longer effective, when there is widely
available end-user software implementing a circumvention method. If
accepted, the argument can have major implications to the debate of the
consequences of DRM. If they can be in many cases ineffective, they do
not have that much meaning.
|
| Opinion |
|
| Book Reviews |
|
| |
|
