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The Indian government is thinking about introducing software patents in the country. But software patents are bad for everyone except large software companies, says V Sasi Kumar
“Software patents are the software project equivalent of land mines: each design decision carries a risk of stepping on a patent, which can destroy your project.”
-- Richard Stallman (http://www.gnu.org/philosophy/fighting-software-patents.html) Over the last decade or so there has been a growing interest in India about intellectual property rights. This term, which became popular after the establishment of the World Intellectual Property Organisation (WIPO) in 1967, is itself misleading as it clubs together things such as copyright, patents, trademarks and animal breeders’ rights that are all very different in nature (see http://www.gnu.org/philosophy/not-ipr.html for more details). The increased emphasis on ‘rights’ itself is misleading because it stresses their importance and the apparent benefits society is supposed to get from them. On the contrary, copyright and patent laws prevent the free dissemination of knowledge, thereby harming society rather than improving it. Perhaps the most striking example of the harm patents can do is the restriction imposed on the manufacture of AIDS drugs in order to keep prices high and limit access to these life-saving drugs by people who need them most. Copyright laws prevent the publication of material without permission from the copyright holder. The law is applicable to an exact form of representation from the original and does not prevent ideas from being expressed in a different form. Thus, the ideas expressed in a physics textbook may be expressed in a different form in another book without violating the copyright law. This freedom obviously has to exist or else once a person has written a textbook no one else will be able to write another! Patents are a different story altogether. They are a means by which a new invention can be documented so that the knowledge will be available for later use. In return for disclosing the invention, the inventor is given monopoly over the invention for a certain period of time, during which he can financially benefit from his invention. This helps bring out information about the invention (which the inventor may not otherwise disclose) that would be lost forever if the inventor died without revealing it. Both laws attempt to help society, by making the work of creative individuals useful and encouraging them to do more such work. And they have been somewhat successful in achieving this goal. However technology has changed drastically, so also the manner in which things are done. For instance, the importance of printing in disseminating information in the form of text and images has diminished. It is now possible to transfer vast volumes of information in the form of text, images, sound or video to virtually millions of people within a short time and with very little expenditure. This was impossible before the advent of the Internet. Thus, the copyright law that came into force in 1710 with the advent of printing is much less relevant today with the arrival of ICT (Information, Communication, Technology).
As regards patents, there appears to be some relevance -- to promote companies to invest in research and development. At the same time, however, there are areas where patent laws prevent humankind from benefiting from new developments, as mentioned earlier. It is true that though a lot of development happens as a result of research undertaken with public funds, these developments are often prevented through patents from benefiting the public. For instance, when a new technology is developed with money from the government it is often patented and people prevented from using it. Anyone who wishes to make use of the technology has to pay for it. The company has to extract this cost from its clients or customers. Thus, people end up paying twice for the development -- first by funding the institute that developed it and the project through which the technology was developed, and second, while using the product. When it’s a question of software, things are very different. Software is not a tangible product like a table or a computer. Unlike hardware, what is patented in software is an idea. Software patents prevent a person from using the idea that is patented. A piece of software can have a large number of ideas incorporated in it; it is virtually impossible for a programmer to carefully avoid all patented ideas. “Developing a large and complex program means combining many ideas, often hundreds or thousands of them,” says Stallman (see http://www.gnu.org/philosophy/fighting-software-patents.html). “In a country that allows software patents, chances are that some substantial fraction of the ideas in your program will be patented already by various companies. Perhaps hundreds of patents will cover parts of your program.” An example of an idea that has been patented and virtually prevented from being used without problems is the algorithm for converting a picture into its component colours used for printing -- namely cyan, magenta, yellow and black. This conversion is very convenient for printing purposes. But an independent programmer or small organisation cannot implement the algorithm without paying royalty to the owner of the algorithm. This affects small developers, especially free software applications more than others, for several reasons. Even if one were to carefully go through the patents, it is virtually impossible to avoid violating one of them. That’s because a huge number of patents have already been issued in the US. And the number is increasing by about a hundred thousand a year. It is impossible to go through all of them carefully to ensure that the next line you are going to write for your program does not violate any of them. To add to the problem, patent descriptions are usually so vague that any good lawyer will be able to interpret what he wants from it. Whatever program statements you write, therefore, could be interpreted as violating a patent. Software patents help only large companies like IBM and Microsoft that have huge collections of patents so that they do not file patent violation suits against each other. A small software company can never file a suit against a large company that violates its software patent because the large company will be able to file a hundred cases in return. Thus, software patents help large software companies and affect the free development of software by small companies and individual programmers. Fortunately, as of now, only the US has a law for software patents so developers working elsewhere need not worry about being taken to court for patent violation. But if what we hear is true, this may soon change. The Indian government is thinking about introducing software patents in the country. This was already tried in the past, but the move was prevented by individuals and organisations that lobbied hard to stop it. There are, unfortunately, many individuals and organisations that believe that software patents are good for Indian companies. Nothing could be further from the truth. As explained above, software patents are bad for everyone other than large companies. Each software patent is a potential mine in the path to progress for small software companies. Allowing software patents in the country will be like strewing the path with mines. One argument put forward in support of software patents in India is that it is mandated by WTO norms. This is totally false. Under WTO norms, software is protected by copyright and does not come under patent laws. There is absolutely no pressure on the Government of India by the WTO to enact software patent laws. If anything, the pressure is from large software companies that will benefit from the law. To repeat what Stallman and supporters of the free software movement have been saying for a long time: software is like knowledge, and like knowledge, has to be free (as in freedom). Free software operating systems such as GNU/Linux have been growing in popularity and quality; an increasing number of people are now using them. The province of Extremadura in Spain, the city of Munich in Germany, and the state of Kerala in India are examples of governments that are migrating to free software. A number of companies including LIC of India and ELCOT of Tamil Nadu have also changed over. South Korea is migrating all its 10,000 or so schools to free software. Software patents are particularly bad for free software, for several reasons. Since there is no single owner of free software it’s difficult for anyone to even decide to pay royalty. Also, royalty depends on the number of copies, which again makes it hard to assess as free software can be freely copied and distributed without any account of the number of copies made or distributed. Implementation of software patents in India could deal a serious blow to the rising popularity of free software in India. Forecasts point to the increasing dominance of free software in the coming years. Some of the more popular applications today are free software like the Firefox browser, Apache webserver and MySQL database. If all software were to become free (swatantra) in a few years, there would be no need for software patents. So let us all say ‘No’ to software patents in India before the path to software development becomes a dangerous minefield. (This article is licensed under the Creative Commons Attribution No Derivatives Licence 2.5. It may be published in its original form in any media by anyone, provided this note is included) (V Sasi Kumar is with the Atmospheric Sciences Division of the Centre for Earth Science Studies, Thiruvananthapuram) InfoChange News & Features, August 2008
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