UK public comment on important issues, due April 21

[Shane M. Coughlan]

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The UK government has called for public comment on certain
copyright and patent issues.

http://www.hm-treasury.gov.uk/media/978/9B/gowers_callforevidence230206.pdf

The deadline for submitting your comment is the 21st of April.  I have
just sent in my comment, and reproduce it below for reference:

=== Shane's comment ==

As a fellow of the Free Software Foundation Europe, an associate of the
Free Software Foundation, a member of the Open Source Academy and a
member of numerous Free Software development teams, I hereby wish to
register my concern regarding the current review of what you term
“Intellectual Property Rights.”

Firstly, the term 'Intellectual Property' is in itself problematic.   To
quote from an article on the Free Software Foundation website: “The term
"intellectual property" operates as a catch-all to lump together
disparate laws.   Non-lawyers who hear the term "intellectual property"
applied to these various laws tend to assume they are instances of a
common principle, and that they function similarly.  Nothing could be
further from the case.   These laws originated separately, evolved
differently, cover different activities, have different rules, and raise
different public policy issues.   Copyright law was designed to promote
authorship and art, and covers the details of a work of authorship or
art.   Patent law was intended to encourage publication of ideas, at the
price of finite monopolies over these ideas--a price that may be worth
paying in some fields and not in others.   Trademark law was not
intended to promote any business activity, but simply to enable buyers
to know what they are buying; however, legislators under the influence
of "intellectual property" have turned it into a scheme that provides
incentives for advertising (without asking the public if we want more
advertising).”  (http://www.gnu.org/philosophy/not-ipr.xhtml)

I am uncomfortable with the use of a blanket term to cover issues that
are inherently different, and I wish to have that noted.

On page 1 of your call for evidence there is also a problematic
sentence.   It suggests that the state “must ensure that IP owners can
enforce their rights through both technical and legal means.”  The state
remit is that of legal jurisdiction.   The adoption of technological
enforcement of copyright, patent or trademark claims as an extension or
supplement of legal jurisdiction is an untenable one.   It is not the
state's place to enforce or sanctify technological limitations on
hardware or software.   It is the state's role to provide a legal
framework for just regulation.   By allowing for the confusion of legal
and technological jurisdiction, the state permits the existence of
limitations on end user experiences that go far beyond the enforcement
of just rights.   The most worrying example of this is termed Digital
Rights Management (DRM), and falls within the remit of the call for
evidence under the section entitled 'COPYRIGHT – DIGITAL RIGHTS MANAGEMENT.'

Digital Rights Management is an unfair extension of legitimate copyright
terms to cover all aspects of use.   It is about restricting how and
when people can use copyrighted files.  It may restrict how many times
people can play something.  It may restrict people's ability to share
something.  It may restrict the method people employ to consume
something.  It is about allowing companies to determine how the end user
will experience the copyrighted material that the end user purchased.

Ultimately DRM means that when a person buys a copyrighted file, they
don't actually have the permission to use it.  The file containing the
DRM protected information won't necessarily work on another computer, or
your mobile phone, or your PDA.  It's a bit like selling a book designed
to be read in the living room, but with a limitation preventing it being
read in the bath.  Instead of finding a way to stop the end user giving
illegitimate copies of a work to other people, DRM is about controlling
the right to copy work for any purpose, and in the process it determines
the end user consumption method and options as well.

DRM creates a completely new way of controlling how people access
information and sanctions corporate control in what was previously a
very private sphere.   DRM will allow the companies who create DRM, and
the companies that own the content, to  control digital networks.   It
is an unappealing thought, and governments will be disenfranchised along
with citizens.   At best DRM is a misguided attempt to solve a legal
concern through a technological arena.   At worst it is a wholly unfair
attempt to control how people can access or use copyrighted material,
regardless of historical precedent or fair access rights.

DRM is unnecessary.   Governments already stop people sharing
copyrighted material through copyright law.   Existing copyright law is
applicable to books that you can hold, and books on your computer.  It
applies to music, movies and software.   There is no place nor fair
justification for any extension of this law through technological
limitations and controls.

On a final note, I wish to note that your call for evidence does raise
valid points.   In particular, on page 2 it is suggested that while
“patents provide a vital incentive for innovation, the granting of
overly broad patent protection, together with restrictive or restricted
licensing of IP, can impede the development of the next generation of
products and reduce competition.”  This is undoubtedly true, especially
in an area critical to the sustainability of the European economic
sphere: software development.   The United States of America currently
sanctifies broad software patents and innovation is distorted because of
this.   Examples of obvious, overly broad or misguided patents abound,
with perhaps the most famous being that of Amazon.com and their patent
of “One-click” purchasing system.   Such a patent is obvious, and
dependent only on an authentication system and a user log-in identity.
 While an argument exists for the ability to patent an innovating
invention, the use of standard technology to facilitate an obvious and
abstract service is unacceptable.   Software patents, covering an area
without tangible products and where standardised tools are used to
create new applications, are an unjust for both innovators and end
users.   Software should properly be covered by copyright law, not
patents.   There is an excellent article on this matter on The Guardian
website
(http://technology.guardian.co.uk/online/comment/story/0,12449,1510566,00.html).

Thank you for reading my thoughts on this matter.   I look forward to
following this consultation processes closely.

Yours

Shane M.  Coughlan

(Detached Digital Signature enclosed with original email)


- --
Shane Martin Coughlan
e: shane at shaneland.co.uk
m: +447773180107
w: www.shaneland.co.uk
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