VSJ – November 2003 – Sounding Board

Robin Jones reflects on the convoluted and confusing world of intellectual property.

Some years ago, I recall writing a routine that needed to execute a loop differently on the first pass from how it was to behave on all subsequent passes. I solved this problem by altering the executable code at the end of the first pass. Yes, I know; three slaps on the wrist with a wet lettuce. My excuse is that it saved about 350 bytes out of a total available RAM of 8K. I did say it was a while back.

I was reminded of this is by the current furore over SCO’s claim that it ‘owns’ a chunk of Linux. Indulge me a moment. Imagine that I was so delighted with the offending piece of code that I made it pretty much a trademark and subsequently inserted it wherever possible in whatever I wrote for whomever was my employer. Because even I admit that it is somewhat idiosyncratic, my original employer’s lawyers would have little difficulty proving that all subsequent instances ‘belonged’ to their clients.

Or would they? Aren’t we really talking about style here? (Admittedly bad style, in my case.) Take another example: an art patron commissions a painting from a well-known artist. Does he own a percentage of all the artist’s subsequent works because art experts can attest that the brushwork is the same?  Not yet, he doesn’t. But unless the paranoia surrounding any discussion of intellectual property abates, maybe he will.

The paranoia is understandable, of course. Less than twenty years ago, copying anything was time-consuming and expensive (often more expensive than a legal purchase) and usually led to poor quality results. Today, many things can be copied for pennies, the result being indistinguishable from the original. So naturally companies worry about their return on investment. But their response at the moment seems to be that the customer is always wrong. Should a record company be able to tell me that I can only play a CD on a prescribed device because I might break the law if I were allowed to use another one? Well, it can if it likes but it’s implying that I’m a thief before the fact and I reserve the right not to deal with a company that treats me like that. Oddly, shotgun manufacturers don’t say that their products might be used illegally so they won’t sell them.

So far, legislators have not covered themselves in glory in grappling with the undeniably thorny problem of protecting both providers’ and consumers’ rights. The first patent for a gene sequence was granted in 1980. But a patent can only apply to an invention that is novel. How novel is something that’s been around for a couple of hundred million years? And aren’t gene sequences discovered rather than invented?

The European Parliament has, to its credit, recently deferred a decision on IP legislation. It is vital that this law is framed especially carefully. Otherwise, the 17000 jobs that the EU estimates are lost within its borders every year as a result of acts of piracy will be replaced.  Just by lawyers.

[Something you’d like to get off your chest? Email me (Robin Jones) at eo@iap.org.uk.]

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