[Fsf-friends] Dismal Interpretations

[Ramanraj K]

Vijay Kumar wrote:

>Ramanraj K <ramanraj.k@gmail.com> writes:
>
>  
>
>>amendments to the Copyright  Act, 1957.  The mis-application of patent
>>law to cover computer programs  would have been a serious violation of
>>our  international obligations  and  India could  have been  arraigned
>>before  the WTO  for breach.   The illegitimate  practice  of granting
>>patents for  computer programs is notably  present in US,  Japan and a
>>few European countries.  India should complain to the WTO and obtain a
>>ruling  asking these  countries to  comply with  the TRIPS  treaty and
>>update their laws.
>>    
>>
>
>I am confused.  Section 5, article 27 of the TRIPS agreement says
>
>    1. Subject to the provisions of paragraphs 2 and 3, 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.
>
>Then how could patents for software ideas be an illegitimate practice
>under the TRIPS agreement?  Doesn't this just mean that software is
>both copyrightable and patentable?  What am I missing?
>
This is the stupid argument that is frequently used by those who support 
"software patents".

By the time we come down to Art. 27, should we conveniently forget what 
we read under Arts. 9 and 10? Article 10(1) says " Computer programs, 
whether in source or object code, shall be protected as literary works 
under the Berne Convention (1971)." That is in plain English, and 
Computer programs are to be dealt with as literary works, and it is 
plainly wrong to apply patent law to literary works.  Patents for 
literary works would be absurd, and precisely why "software patents" are 
an illegitimate practice.

Please know that:
"Affirmative words  are often, in their operation,  negative of other
objects than those affirmed; and in this case, a negative or exclusive
sense  must be  given to  them,  or they  have no  operation at  all".
-Chief  Justice  Marshall  in  William Marbury v. James Madison
2 L.  Ed.   60 (1803) also
reported at: http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm

This is too fundamental a proposition to be challenged.  The doctrine of 
judicial review rests upon it, and this is too elementary a principle of 
interpretation.  Apply this principle to Art. 9 and 10 of TRIPS, and you 
cannot get it wrong.  There is no such thing as being "half-pregnant" or 
having both patents and copyrights at the same time since both are 
largely mutually exclusive.