(2007) 4:2 SCRIPTed 161—241

Issue DOI: 10.2966/scrip.040207

Volume 4, Issue 2, June 2007

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