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Difference between revisions of "TRIPS Agreement"
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Sometimes politicians are told that software patent legislation is required for compliance with TRIPS, but this is rubbish. | Sometimes politicians are told that software patent legislation is required for compliance with TRIPS, but this is rubbish. | ||
| − | ==Article 27== | + | ==TRIPS does not require swpats== |
| + | |||
| + | ===Article 27=== | ||
The clause used as a base for this rubbish claim is Article 27 paragraph 1: "''patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.''" | The clause used as a base for this rubbish claim is Article 27 paragraph 1: "''patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.''" | ||
However, TRIPS does not say that writing software is a "field of technology". In fact, that term is not defined at all, so every legislature is free to decide which activities are and which aren't part of a field of technology. | However, TRIPS does not say that writing software is a "field of technology". In fact, that term is not defined at all, so every legislature is free to decide which activities are and which aren't part of a field of technology. | ||
| − | ==Article 10== | + | ===Article 10=== |
Moreover, a direct comment about software in TRIPS is in Article 10: "''Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).''" Literary writing is not a field of technology, so this sentence implies that the authors of TRIPS did not intend software to be counted as a field of technology. | Moreover, a direct comment about software in TRIPS is in Article 10: "''Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).''" Literary writing is not a field of technology, so this sentence implies that the authors of TRIPS did not intend software to be counted as a field of technology. | ||
| + | |||
| + | ==Interoperability execptions== | ||
| + | ===Article 30=== | ||
| + | Full text: | ||
| + | :"''Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.''" | ||
| + | |||
| + | ===Article 40.2=== | ||
| + | |||
| + | Article 40.2 says: | ||
| + | :"''Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member.''" | ||
| + | |||
| + | Since software patents have severe adverse effects on competition and markets, so there is clearly grounds for adding conditions to the use of patents in relation to software, communication, standards, compatibility, etc. This approach was suggested in [[Japan]]. | ||
==External links== | ==External links== | ||
| − | * [http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm The text of TRIPS on wto.org] | + | * [http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm The text of TRIPS on wto.org] ([http://www.wto.org/english/docs_e/legal_e/27-trips.pdf pdf]) |
* [http://en.wikipedia.org/wiki/Software_patents_under_TRIPs_Agreement Wikipedia:Software patents under TRIPs Agreement] | * [http://en.wikipedia.org/wiki/Software_patents_under_TRIPs_Agreement Wikipedia:Software patents under TRIPs Agreement] | ||
* [https://elaw.murdoch.edu.au/archives/issues/2007/1/eLaw_avoiding_software_patent_problem.pdf Avoiding the Software Patent Problem: An Alternative Fix For TRIPS Junkies], by Anton Hughes | * [https://elaw.murdoch.edu.au/archives/issues/2007/1/eLaw_avoiding_software_patent_problem.pdf Avoiding the Software Patent Problem: An Alternative Fix For TRIPS Junkies], by Anton Hughes | ||
Revision as of 21:34, 4 June 2009
TRIPS is an international agreement of the World Trade Organisation (of which most countries of the world are members).
Sometimes politicians are told that software patent legislation is required for compliance with TRIPS, but this is rubbish.
Contents
TRIPS does not require swpats
Article 27
The clause used as a base for this rubbish claim is Article 27 paragraph 1: "patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application."
However, TRIPS does not say that writing software is a "field of technology". In fact, that term is not defined at all, so every legislature is free to decide which activities are and which aren't part of a field of technology.
Article 10
Moreover, a direct comment about software in TRIPS is in Article 10: "Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)." Literary writing is not a field of technology, so this sentence implies that the authors of TRIPS did not intend software to be counted as a field of technology.
Interoperability execptions
Article 30
Full text:
- "Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties."
Article 40.2
Article 40.2 says:
- "Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member."
Since software patents have severe adverse effects on competition and markets, so there is clearly grounds for adding conditions to the use of patents in relation to software, communication, standards, compatibility, etc. This approach was suggested in Japan.
