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1,,
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Tue, 18 Jun 1991 11:34:34 +0100
Date: Tue, 18 Jun 91 11:36:08 BST
Message-Id: <11615.9106181036@etive.aipna.ed.ac.uk>
From: Alan Bundy <bundy@aipna.edinburgh.ac.uk>
Subject: EC Copyright Directive: Letter to MP
To: ecsr@edinburgh.ac.uk, elpf@edinburgh.ac.uk
Phone: Note my new number: 44-31-650-2716
Fcc: +csr.mai
Cc: rms@gnu.ai.mit.edu
*** EOOH ***
Date: Tue, 18 Jun 91 11:36:08 BST
From: Alan Bundy <bundy@aipna.edinburgh.ac.uk>
Subject: EC Copyright Directive: Letter to MP
To: ecsr@edinburgh.ac.uk, elpf@edinburgh.ac.uk
Phone: Note my new number: 44-31-650-2716
Fcc: +csr.mai
Cc: rms@gnu.ai.mit.edu
ECSR agreed at its meeting of 10.6.91 to institute a letter
writing campaign about the EC Directive on Software Copyright. I
was charged with encouraging people to do this and to provide a
standard letter. This email is the encouragement.
One of the most effective techniques is to write to your MP
asking him/her to take the matter up with the relevant minister
(who in this case is the Secretary of State for Trade and
Industry). That way an experienced politician, other than the
minister concerned, sees both your letter and the reply.
It is best if you write this letter in your own words, as lots of
identical letter have less effect than lots of different ones,
but if you don't have the time to compose your own letter, here
is a slightly modified version of the one I sent. Even if you
only edit this a little (eg changing the examples) it would help.
If you write your own letter there are lots of points raised in
Richard Stallman's articles that you could mentioned. It is
probably a good idea not to bring up the software patents matter
at this stage, as that will tend to muddy the waters.
If you have suggestions as to where else to circulate this
message then please let me know.
Alan Bundy
STANDARD LETTER
Dear <your MP>,
I am increasingly concerned
about the new European Directive on the legal protection of
computer programs. I fear that the practical effect of this
Directive will be to prevent the adoption of industry wide
standards, create {\em de facto} monopolies of certain kinds of
computer system and inhibit new developments in the computer
industry. In particular, it will give an advantage to
well-established, large computer companies at the expense of
small start-ups.
The problem is that bad drafting of the Directive has left open
the possibility of the copyrighting of computer interfaces.
Despite the declared intention of the Directive's drafters and
their assurances to the contrary, they appear to have left a
loophole in the law. This loophole could be closed in the laws
drawn up by the EC member countries in their response to the EC
Directive. Could you pass this letter to the Secretary of State
for Trade and Industry and ask him what steps he intends to take
to close the loophole?
The difficulties arises from an ambiguity in the word
`interface', which is used in two senses in the computer
community. Sense 1 is {\em the rules and conventions whereby a
computer communicates with another entity}, for instance, a human
user or another computer system. Sense 2 is {\em the part of the
computer program which implements these rules and conventions}.
The Directive systematically confuses these two senses. Copyright
should, of course, apply to interfaces in sense 2, in the same
way that it applies to any computer program. However, it is vital
that interfaces in sense 1 are not subject to copyright.
Interfaces in sense 1 provide the standards of use for computer
systems. They are directly analogous to the order of pedals in a
motor car or the layout of keys on a typewriter. It is in the
public interest to standardise on one interface for each kind of
computer system, {\em e.g.} spreadsheet, window system, a
programming language, {\em etc.} Once a {\em de facto} standard
interface for a particular kind of computer system has emerged,
to give a copyright on it to one company is to give that company
a {\em de facto} monopoly on that kind of system. Other companies
will be excluded from the market because users will decline to
learn a new interface. (Imagine that one typewriter company had
a copyright on the qwerty layout.)
Critics of the Directive have been assured that interfaces in
sense 1 are excluded for its provisions because the ``ideas and
principles which underlie any element of a computer program,
including those which underlie its interface, are not protected
by copyright''. Unfortunately, this is not good enough. The
standards implicit in an interface descend to a very low level of
detail, for instance the particular keywords of a programming
language, the icons of a window system, the order of updating of
a spreadsheet's elements. In the USA the judges have interpreted
a similar copyright law by treating these low level details as
part of the expression of the interface and, therefore,
copyrightable. In a succession of `look and feel' legal cases,
large computer companies have gained a monopoly over the
interfaces (sense 1) of the computer systems they have developed
and used this to put their rivals out of business. There is no
obstacle to UK judges making a similar interpretation of the EC
Directive, unless the UK Government takes steps to close this
loophole.
What steps will the UK Government take to ward off this threat?
1,,
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Date: Mon, 10 Jun 91 14:12:24 BST
Message-Id: <4871.9106101312@etive.aipna.ed.ac.uk>
From: Alan Bundy <bundy@aipna.edinburgh.ac.uk>
Subject: ECSR Meeting Report
To: ecsr@edinburgh.ac.uk
Phone: Note my new number: 44-31-650-2716
Fcc: +csr.mai
Cc: rms@gnu.ai.mit.edu, mib@gnu.ai.mit.edu
*** EOOH ***
Date: Mon, 10 Jun 91 14:12:24 BST
From: Alan Bundy <bundy@aipna.edinburgh.ac.uk>
Subject: ECSR Meeting Report
To: ecsr@edinburgh.ac.uk
Phone: Note my new number: 44-31-650-2716
Fcc: +csr.mai
Cc: rms@gnu.ai.mit.edu, mib@gnu.ai.mit.edu
Thanks to all those people who turned up to the meeting
on "Software; patents, copyright and `look and feel'", and
especially those who volunteered to undertake specific actions.
(We will draw a discrete veil over those who promised to turn up,
but didn't.) Here is a report on the decisions of the meeting.
1. Contact with Other Groups
We will urge all people interested in this issue to
subscribe to the EPLF newsgroup. Alan Black will post appropriate
adverts for this newsgroup. Subscribe by emailing to
elpf-request@castle.
We should consider affiliating to the British League for
Programming Freedom, should one be set up.
We will contact the European Committee for Interoperable
Software.
2. Collecting Information.
Alan Black agreed to act as librarian for all relevant
information on these issues. Please inform/post him (awb@aipna)
anything you know about. Contact him if you need any information.
In particular, he will chase up a factsheet that Richard Tobin
was to extract from Richard Stallman.
Peter Ross will contact two lawyers that he knows (Neil
MacCormack & David Kidd) who are interested in computers and the
law and try and persuade them to take an interest, maybe
attending future meetings.
3. Writing to Politicians.
We will organise a campaign of writing to the relevant
Minister via local MPs about the copyright issue before the
ratification of the EC directive. Alan Bundy will draft a form
letter, which Alan Black will post to relevant newsgroups. People
will be urged to write their own letter, if possible, and to use
the form letter as a last resort. ECSR will also send its own
letter enclosing some of the literature provided by Richard
Stallman. Richard Rohwer agreed to produce this in a suitably
glossy form.
We will also write to other politicians, eg Tam Dayell,
Emma Nicholson and our MEP, David Martin. Any volunteers for
this?
At a later date we will try and meet some of these
politicians.
We should repeat this exercise for the patent issue, but
this is less urgent.
4. Articles, Letters, etc
We will try and write a collective article expressing our
group viewpoint and then place this in the computing/science
section of a national quality daily. Richard Rohwer will write
the first draft. We will then use this as a basis for: future
articles by ourselves and/or friendly journalists, letters to the
newspapers, broadcasts, interviews, etc. We need to prepare
ourselves with follow-up letters, spokespeople, etc before this
article is placed.
We should prepare some case studies on particular patents
and make them into press releases in order to raise public
awareness of the problems. We should emphasise the likely effect
on the UK software industry, especially small firms.
5. Information Wanted
Does anybody know the answer to any of the following
questions?
(a) What is the precise name of the EC Directive on software
copyright?
(b) When will it be ratified by the UK Parliament?
(c) Which Minister is responsible for the ratification?
Alan Bundy
1, answered,,
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Date: Mon, 29 Jul 91 14:07:01 BST
Message-Id: <16923.9107291307@etive.aipna.ed.ac.uk>
From: Alan Bundy <bundy@aipna.edinburgh.ac.uk>
Subject: Letter to Lord Reay
To: ecsr@edinburgh.ac.uk, elpf@edinburgh.ac.uk
Phone: Note my new number: 44-31-650-2716
Fcc: +csr.mai
Cc: stallman@aipna.edinburgh.ac.uk
*** EOOH ***
Date: Mon, 29 Jul 91 14:07:01 BST
From: Alan Bundy <bundy@aipna.edinburgh.ac.uk>
Subject: Letter to Lord Reay
To: ecsr@edinburgh.ac.uk, elpf@edinburgh.ac.uk
Phone: Note my new number: 44-31-650-2716
Fcc: +csr.mai
Cc: stallman@aipna.edinburgh.ac.uk
Here is a copy of my response to Lord Reay on the EC
Software Directive.
Alan
<---------------------cut here------------------------------->
\documentstyle[a4,12pt]{letter}
\begin{document}
\name{Professor Alan Bundy}
\address{
23a Lauder Road, \\
Edinburgh {\sc eh9 2jg}, \\
{\sc scotland} }
\signature{Professor Alan Bundy}
\telephone{031 667-5770}
\begin{letter}
{\ }
\opening{Dear Mr Griffiths,}
Thank you for passing on Lord Reay's letter of 5th July, replying
to my letter of 13th June about the European Directive on
Software Copyright. Unfortunately, I was not reassured by Lord
Reay's response.
He claims that ``there is nothing in the directive which will
extend the copyright protection of computer programmes beyond its
present ambit in the UK''. I fear this is not the case. The
directive is clearly an attempt to move copyright law in European
countries from its current satisfactory state to be more in line
with its unsatisfactory state in the USA. The final wording was a
compromise between two industrial pressure groups: SAGE and ECIS.
SAGE represented the big companies keen for greater copyright
protection to see off what they regard as unfair competition.
ECIS represented the small companies anxious to defeat what they
regarded as attempt to put them out of business. The conservative
MEPs tended to side with SAGE for an extension of copyright ---
an attitude I find hard to understand given the importance of
small, high technology companies for the future health of the
European economy.
In particular, the European parliament voted out an amendment,
which had the support of ECIS, and which would have ensured that
interfaces in the `rules and conventions' sense were excluded
from the law.
\begin{quote}
``Whereas, for the avoidance of doubt, it has to be made clear
that only the expression of a computer program is protected and
that ideas and principles, procedures, processes, systems,
methods of operation and concepts which underlie any element of a
program, including its interfaces, are not protected by copyright
under this Directive; Whereas, these unprotectable items include,
for example, protocols for communication, rules for exchanging or
mutually using information that has been exchanged, formats for
data, and the syntax and semantics of a programming
language;...''
\end{quote}
The rejection of this amendment could easily be interpreted by
the courts as an indication that the European Directive was meant
to allow protection of computer interfaces, unless the UK
Government makes explicit provision, in its implementation of the
Directive, to exclude them.
Lord Reay assumes that because the ``ideas and principles
underlying any element of a programme'' are excluded by the
Directive that an interface, in the `rules and conventions'
sense, is automatically excluded. But here is the crux of my
worry. `Ideas and principles' is too grand a concept to fit the
bill. Many of the `rules and conventions' in an interface are
rather lowly affairs: the design of an icon, the place on a
window on which one clicks to make it go away, the order in which
the elements of a spread sheet are recomputed, the name of the
command for removing a file, {\em etc.} A UK court could easily
follow the US courts in deciding that these vital but lowly items
were part of the `expression' rather than part of the `idea and
principles'. That is why the rejected amendment above extends
`ideas and principles' to a much longer list of more humble
items.
It is not enough to hope, as Lord Reay does, that UK courts would
not follow the reasoning of the US courts and allow copyright
protection of interfaces. The UK implementation of the Directive
must try to prevent UK courts taking the US line. I would like to
know how the UK Government intends to do this.
I would be grateful if you could pass this letter on to Lord Reay
and ask for his response.
\closing{Yours sincerely,}
\end{letter}
\end{document}
1, answered,,
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Thu, 1 Aug 1991 04:04:16 +0100
Date: Thu, 01 Aug 91 04:08:24 BST
From: Clive <CRJ10@phx.cam.ac.uk>
To: Richard Stallman <rms@gnu.ai.mit.edu>,
ELPF mailing list <elpf@castle.edinburgh.ac.uk>
Cc: Magnus Ramage <MAR19@phx.cam.ac.uk>, Steve Tweedie <ST111@phx.cam.ac.uk>,
John Levine <johnl@aipna.edinburgh.ac.uk>,
Mike Williams <MJW19@phx.cam.ac.uk>,
mathew <mathew@mantis-consultants.co.uk>,
Gavin Matthews <GRM11@phx.cam.ac.uk>
Subject: A worrying article
Message-Id: <A44728A17A085290@UK.AC.CAMBRIDGE.PHOENIX>
*** EOOH ***
Date: Thu, 01 Aug 91 04:08:24 BST
From: Clive <CRJ10@phx.cam.ac.uk>
To: Richard Stallman <rms@gnu.ai.mit.edu>,
ELPF mailing list <elpf@castle.edinburgh.ac.uk>
Cc: Magnus Ramage <MAR19@phx.cam.ac.uk>, Steve Tweedie <ST111@phx.cam.ac.uk>,
John Levine <johnl@aipna.edinburgh.ac.uk>,
Mike Williams <MJW19@phx.cam.ac.uk>,
mathew <mathew@mantis-consultants.co.uk>,
Gavin Matthews <GRM11@phx.cam.ac.uk>
Subject: A worrying article
The article below appeared in a feature on the British Technology Group
(BTG) in "Software Echo", the journal of the Scottish Software Community,
issue 2.
The BTG is an organisation concerned with the "exploitation" (their words) of
new technology, including developments that result from SERC-funded research in
the UK academic community. (SERC is the British Science and Engineering
Research Council - the main funding body for UK scientific academic research.)
Thus its opinions on software patenting are of not inconsiderable importance,
which makes their current stance all the more worrying.
I suggest that a concerted effort should be made to point out to them that
people are uneasy about their attitude. Given the current state of the British
League for Programming Freedom, this would be best done by people as private
individuals, rather than as an organisation. Since the article appeared in a
Scottish journal, those of you in Scotland might feel especially concerned
about this.
The journal has a talkback section. Letters for it can be sent to:
Hazel Sinclair,
Scottish Enterprise,
120 Bothwell Street,
Glasgow G2 7JP.
Fax: 041-221 3271
Contributions for the next issue should arrive before August 30th.
The BTG representative who edited the section is:
Dr. Eugene Sweeney,
Electronics & Information Technology Division,
The British Technology Group,
101 Newington Causeway,
London SE1 6BU.
Tel: 071 403 6666
Fax: 071 403 0320
Perhaps the BTG should also have it pointed out to them that the very laws they
are welcoming to the UK are now under question in the USA?
Please also make your departments aware of the possible dangers of associating
with the BTG, if possible, although the BTG does provide other useful services,
even though misguided on this issue.
Distribute details of the BTG's stance on patents to others you think might be
interested.
My thanks go to Steve Tweedie <st111@uk.ac.cam.phx> for pointing this article
out to me.
--Clive.
----included-article-follows----
PATENTING SOFTWARE
This is an area in which BTG believes academic and research organisations can
make the most signficant contributions in the long term. Research groups in the
UK are well known for producing ideas that are important in computing science.
In the past, it was believed that these innovations could not be protected by
patenting because algorithms were not patentable. However, recent case law,
particularly in the USA, suggests that this is no longer true. Many major US
computer and software manufacturers now regularly file patent applications on
software concepts.
Areas in which BTG believe valuable, and patentable, software innovations could
arise are:
i) Parallel processing, eg new algorithms that exploit the parallel
architecture.
ii) Language design, eg functional programming languages that enable
algorithms to be specified in a computer-independent manner.
iii) Knowledge-based systems, eg natural-language recognition.
iv) Logic programming, with particular reference to safety-critical systems
and the corresponding design of integrated circuits.
v) Data compression, eg image or speech compression.
Software is, of course, automatically protected by copyright. This normally
belongs to the author (or his/her employer, depending on conditions of
employment).
----end-of-included-article----
1, forwarded,,
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From: Mail System <mmdf@castle.edinburgh.ac.uk>
Subject: Failed mail
To: rms <@nsfnet-relay.ac.uk:rms@gnu.ai.mit.edu>
Message-Id: <9108011802.aa09611@castle.ed.ac.uk>
*** EOOH ***
Date: Thu, 1 Aug 91 18:02:35 WET DST
From: Mail System <mmdf@castle.edinburgh.ac.uk>
Subject: Failed mail
To: rms <@nsfnet-relay.ac.uk:rms@gnu.ai.mit.edu>
Your message was not delivered to the following addresses:
(USER) Unknown user name in "rms.elpf@uk.ac.edinburgh.castle"
Your message begins as follows:
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Date: Wed, 31 Jul 91 23:54:40 -0400
From: rms@edu.mit.ai.gnu (Richard Stallman)
Message-Id: <9108010354.AA28040@mole.gnu.ai.mit.edu>
To: CRJ10@uk.ac.cambridge.phoenix
Cc: rms.elpf@uk.ac.edinburgh.castle, MAR19@uk.ac.cambridge.phoenix,
ST111@uk.ac.cambridge.phoenix, johnl@uk.ac.edinburgh.aipna,
MJW19@uk.ac.cambridge.phoenix, mathew@uk.co.mantis-consultants,
GRM11@uk.ac.cambridge.phoenix
In-Reply-To: Clive's message of Thu, 01 Aug 91 04:08:24 BST <A44728A17A085290@UK.AC.CAMBRIDGE.PHOENIX>
Subject: A worrying article
Sender: rms@edu.mit.ai.gnu
Writing answers to this article is a very useful thing to do.
It would be useful for the ECSR to write a letter as an organization.
Since they mention data compression specifically, it would be useful
to describe the problems caused by the LZW patent in the US--including
the fact that LZW compression is now required by various standards,
both official standards (for modems) and unofficial ones (Postscript
version 2). It is impossible to support these standards without
infringing the patent. There are better (faster and more compact)
compression schemes which are unpatented, but in practice we are still
compelled to use LZW in order to talk to everyone else who does.
One thing I notice about the article is that it fails even to imagine
that the course of action they propose might be controversial. I
suspect the author has never considered the question of whether
software patents might be bad for the "exploitation" of software
techniques--and therefore may be quite open to considering the idea
once it is suggested.
So it would be useful for a prominent and articulate spokesperson to
telephone the author and discuss the subject. Who knows? The author
may agree right away. Perhaps an ECSR officer would be best for
this, depending on how the ECSR is regarded in business circles (are
they considered sensibly cautious engineers or radical crackpots).
This is a peculiar case of selective attention--to be aware of the legal
developments in the US, without even noticing how Americans criticize them.
You might ask whether it is truly desirable for the UK to follow the US
lead blindly.
Another interesting point about this article is that it reflects an
expectation that the UK is likely to interpret laws as they have been
interpreted in the US. This may be useful as an example when you write
to legislators about interface copyright, and they reply that "It can't
happen here."
1, answered,,
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To: rms@gnu.ai.mit.edu
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Subject: Re: request for information on software patents in Europe
Return-Path: <brunner@ltisun2.epfl.ch>
Newsgroups: gnu.announce
Organization: Ecole Polytechnique Federale de Lausanne
Ritchard,
Even if I don't know of software patents in Germany, I heard of 3 IBM
operating system patents on OS2 got accepted for Europe in La Haye,
thus probably also beeing valid for Germany.
A lawyer told me that the European patent office is now accepting
(since a few months) patents on innovative inventions in the field
of operating systems but not on software.
And of course, it's IBM that succeeded first at doing that....
Best regards, and thanks for fighting against these general software
patents.
Beat Brunner
Lab. Teleinformatique
Swiss Federal Institute Of Technology
Lausanne, Switzerland
e-mail: brunner@ltisun.epfl.ch
1, answered,,
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From: orfeo!britesun!vhs@geech.gnu.ai.mit.edu (Volker Herminghaus-Shirai)
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To: Richard_Stallman@unido.informatik.uni-dortmund.de
Subject: Software patents in Germany
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Date: Thu, 8 Aug 91 11:23:48 GMT+0200
From: orfeo!britesun!vhs@geech.gnu.ai.mit.edu (Volker Herminghaus-Shirai)
To: Richard_Stallman@unido.informatik.uni-dortmund.de
Subject: Software patents in Germany
Hi,
our local anti-sw-patent-mailing-list-coordinator ("Pi") announced
that he had aked the German Patent Office about software patents. He
found out that it is only possible to get patents on hardware, or
"Chip Topology". I.e. if a Company implements an algorithm in
hardware (one that doesn't exist already, I suppose (prior art)) then
they can get a patent on the topology of the chip the algorithm is
implemented on. Cloning the algorithm in software then *might* be a
patent infringement
I have today asked at the German Patent Office to send me all the
information concerning the exact conditions and proceedings for
getting such a chip topology patent. The guy i talked with also told
me that software patents are only possible in this way (chip
topology) since it has been decided that software is to be protected
by copyright law rather than patent law. He also agreed that software
patents would be a threat and promised to send me all the material he
has about the whole issue. Now I only hope I can understand the
special kind of lawyer's german they use =:-}. If I make any
progress, I will inform you about the results. If you have any
german-speaking friends over there and you want the papers, I can
send, fax, or mail the papers to you.
Volker
1, answered,,
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From: Alan Bundy <bundy@aisb.edinburgh.ac.uk>
Subject: Software Copyright: Correspondence with Lord Reay
To: ecsr@edinburgh.ac.uk, elpf@edinburgh.ac.uk
Phone: Note my new number: 44-31-650-2716
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Date: Tue, 10 Sep 91 15:18:00 BST
From: Alan Bundy <bundy@aisb.edinburgh.ac.uk>
Subject: Software Copyright: Correspondence with Lord Reay
To: ecsr@edinburgh.ac.uk, elpf@edinburgh.ac.uk
Phone: Note my new number: 44-31-650-2716
Fcc: +csr.mai
Cc: stallman@aisb.edinburgh.ac.uk
The story so far:
I wrote to Lord Reay via my MP about the European Directive on
Software Copyright. Lord Reay is the minister in charge of the
composing the relevant changes in UK law. I received a fairly
vague reply. I decided to write again.
Now read on:
Here is the text of my second letter to Lord Reay and his
response to that.
MY LETTER (via my MP)
"Thank you for passing on Lord Reay's letter of 5th July,
replying to my letter of 13th June about the European Directive
on Software Copyright. Unfortunately, I was not reassured by Lord
Reay's response.
He claims that ``there is nothing in the directive which will
extend the copyright protection of computer programmes beyond its
present ambit in the UK''. I fear this is not the case. The
directive is clearly an attempt to move copyright law in European
countries from its current satisfactory state to be more in line
with its unsatisfactory state in the USA. The final wording was a
compromise between two industrial pressure groups: SAGE (Software
Action Group Europe) and ECIS (European Committee for
Interoperable Software). SAGE represented the big companies keen
for greater copyright protection to see off what they regard as
unfair competition. ECIS represented the small companies anxious
to defeat what they regarded as attempt to put them out of
business. The Conservative MEPs tended to side with SAGE for an
extension of copyright --- an attitude I find hard to understand
given the importance of small, high technology companies for the
future health of the European economy.
In particular, the European parliament voted out an amendment,
which had the support of ECIS, and which would have ensured that
interfaces in the `rules and conventions' sense were excluded
from the law.
\begin{quote}
``Whereas, for the avoidance of doubt, it has to be made clear
that only the expression of a computer program is protected and
that ideas and principles, procedures, processes, systems,
methods of operation and concepts which underlie any element of a
program, including its interfaces, are not protected by copyright
under this Directive; Whereas, these unprotectable items include,
for example, protocols for communication, rules for exchanging or
mutually using information that has been exchanged, formats for
data, and the syntax and semantics of a programming
language;...''
\end{quote}
The rejection of this amendment could easily be interpreted by
the courts as an indication that the European Directive was meant
to allow protection of computer interfaces, unless the UK
Government makes explicit provision, in its implementation of the
Directive, to exclude them.
Lord Reay assumes that because the ``ideas and principles
underlying any element of a programme'' are excluded by the
Directive that an interface, in the `rules and conventions'
sense, is automatically excluded. But here is the crux of my
worry. `Ideas and principles' is too grand a concept to fit the
bill. Many of the `rules and conventions' in an interface are
rather lowly affairs: the design of an icon, the place on a
window on which one clicks to make it go away, the order in which
the elements of a spread sheet are recomputed, the name of the
command for removing a file, {\em etc.} A UK court could easily
follow the US courts in deciding that these vital but lowly items
were part of the `expression' rather than part of the `idea and
principles'. That is why the rejected amendment above extends
`ideas and principles' to a much longer list of more humble
items.
It is not enough to hope, as Lord Reay does, that UK courts would
not follow the reasoning of the US courts and allow copyright
protection of interfaces. The UK implementation of the Directive
must try to prevent UK courts taking the US line. I would like to
know how the UK Government intends to do this.
I would be grateful if you could pass this letter on to Lord Reay
and ask for his response."
LORD REAY'S REPONSE
"Thank you for your letter of 31 July enclosing a further letter
(returned herewith) from Professor Alan Bundy, 23a Lauder Road,
Edinburgh EH9 2JG, on the subject of the EC software directive.
I am sorry that my previous reply did not reassure Professor
Bundy, but I feel that what I said is essentially correct.
May I first of all point out that in meeting our obligations
under the directive, we cannot in fact go beyond what is stated
in the directive in implementing it in UK law. Thus, the most
that could be done in defining the general scope of protection
would be to repeat the directive's statement that the ideas and
principles which underlie any element of a program, including its
interfaces, are not protected. However, as I explained in my
letter, we do not intend to do so, as it is already
well-established in UK copyright law that this is the case.
I would repeat, however, that I do not think that this gives
cause for concern. In particular I do not think that the courts
will be influenced by the Parliament's failure to adopt the
amendment to the directive to which Professor Bundy refers. It
is my understanding that the majority view in the Parliament was
that the amendment was unnecessary, ie it was felt that the
particular items specified in the amendment would in any event be
understood as lying outside the scope of protection, given the
general statement in the directive that ideas and principles are
not protected. Any inference to be drawn from the fate of the
amendment would therefore seem to be that interfaces in the sense
of "rules and conventions" are excluded from protection under the
directive.
As to the overall purpose of the directive, I do not think
Professor Bundy is correct in saying that the intention is to
move European copyright law "from its current satisfactory state
to be more in line with its unsatisfactory state in the USA". In
fact, the position prior to the directive was far from
satisfactory in that there was no clear legal protection for
computer programs in several Member States of the Community, and
the protection that did exist differed widely. This led to
distortions in the internal market and exposed software
providers, including many UK companies, to piracy of their
products. The directive is intended to rectify this, and does so
in a manner which does not significantly extend the scope of
copyright protection in those countries, such as the UK, which
already protected computer programs under their copyright law.
I hope that this is helpful. I would add that in implementing
the directive my officials will be consulting with a wide range
of interested bodies representing the differing shades of opinion
on the directive."
The Next Episode
I will write a third time. Any suggestions of points to make will
be gratefully received. I will mention various `interested
bodies' that Reay's officials should consult, including ECSR and
UK-LPF (or whatever it decides to call itself).
I urge each of you to write to Lord Reay too. Politicians seem to
pay a lot of attention to the volume to mail (maybe more than the
content). It is also a good way to pin them down on various
points.
Alan