Last month I blogged about why it is important to participate in the study by parliament’s Industry Committee on science and technology. I also provided a link to my own submission (OpenDocument, PDF, HTML). Michael Geist has reported that the Canadian Association of Broadcasters has also included copyright proposals in its submission.
The study is already underway, with meetings being held on April 10 and April 17. The transcript for the April 10 meeting is already online, and audio is also available (April 10, April 17).
The April 10′th meeting included officials from Industry Canada, and
the April 17′th meeting included witnesses representing the Association
of Canadian Community Colleges, Canadian Institutes of Health Research,
Social Sciences and Humanities Research Council of Canada.
I found it interesting that one of the questions I’ve always had
about metrics (criteria for success) came up in questions from Ms.
Peggy Nash. She asked exactly how we measure how we are doing.
In his response Mr. Richard Dicerni (Deputy Minister, Department of Industry, said:
“Where we’ve ended up is that if you want to get a sense of the
effectiveness or usefulness of your investment, you have to look at a
basket of indicators—for example, citations per capita. If you’re
looking at the pure research part, how many of our Canadian researchers
get citations? At the other end, how many patents per capita get
produced?”
It is interesting how these different metrics suggest two very
different (opposing) public policy directions. It is well known that
the best way to increase citations to scientific papers it to use Open
Access (OA) publication methods. If increasing citations became a
policy goal, then mandating OA publication as a condition for public
funding would be appropriate. This is being done in an increasing
number of jurisdictions and government funding agencies.
If increasing the number of patents per capita is a goal, then
closing off access to research though increased exclusive rights
becomes desirable. It may be seen as desirable to lower the barrier to
patent granting by allowing more poor quality patents. This could
include removing or minimizing any subject matter exclusions,
underfunding patent offices to make it impossible to do adequate
examination, as well as providing other incentives to ensuring that
patent offices err on the side of granting questionable patents (IE:
patent filers can sue the patent office if a patent was not granted,
but there is no mechanism to sue the patent office if a patent was
improperly granted). While all of these things will increase the number
of patents per capita, studies also indicate that these types of
policies chill innovation.
I found it ironic what I had to do to access the audio of these meetings. The ParlVu service streams the audio using Microsoft’s depreciated legacy proprietary mms protocol, with files in Microsoft’s proprietary Advanced Systems Format (ASF).
While specifications are available, there are patented methods that
must be licensed, and Microsoft does not offer the RF (Royalty Free)
licensing required in order to implement the methods in Free/Libre and
Open Source Software. In other words, the only way I could access the
audio from this parliamentary committee is to potentially infringe
software patents.
I used mplayer to dump the streamed audio to a local file, and then used ffmpeg to transcode to MP3 format which I could then listen to on my portable devices (My cell phone and my OLPC XO).
I say “potentially infringe” because this is currently a legal grey
area. Software Patents are often justified by claiming that they are
not patenting software,itself, but patenting methods embedded within
hardware that happen to be implemented in software. Does this mean that
these software patents only apply to hardware manufacturers, or also to
distributors of software unbundled with any specific hardware that is
intended to be used on a general purpose computer?
The other question is about amateur uses. It has historically been
understood that patent law applies to industrial users of the methods,
and does not impact activities that would be carried out by the
eventual end-owner of the good, such as any tinkering. I know of no
case of an amateur software developer or any individual software user
being sued for patent infringement, and I would be extremely surprised
if the patent holder would win such a case.
I think it is an important part of the committee’s study on science
and technology to think about these issues, and to look towards
clarifying these areas of law. My submission to the industry committee
included the following on patent law:
Patent law is economic policy, intended to provide an incentive for
innovation by providing a temporary government granted monopoly on an
art, process, machine, manufacture or composition of matter which are
workable, new, and ingenious (useful, novel, unobvious). While this is
economic policy, changes in patent law have come as a result of legal
analysis rather than economic analysis.
There are subject matter where independent studies have indicated
that patents stifle rather than provide an incentive for innovation.
Governments must commission independent studies and make decisions
about patentable subject matter based on these studies, rather than
legal arguments presented by those who benefit from legal uncertainty
or stifling of innovation.
Patent law should have exclusions for practical, moral, and ethical
reasons. Canada needs only to look at the European Patent Convention’s
article 92 exclusion list for an example.
Patent quality is very low in some subject matter, such as software,
which creates a practical problem. Patent quality must be assured in
each subject matter area., possibly with a rule saying that 50% must be
good quality in order for patents to be granted and/or enforceable in
that subject matter? It is competition and first mover advantage, not
exclusive rights, that drive innovation in software
We need a “Fair Use” doctrine for patent law, possibly carving out
interface patents, royalty-free FLOSS implementations, and the
activities of private citizens in their home or as amateurs and
tinkerers. Patents for producing hardware or other tangibles are often
opened up to competitors using RAND (Reasonable And Non-Discriminatory)
licensing terms where there is a low per-copy royalty which is offered
to anyone. While RAND is appropriate for tangibles, it is inappropriate
for software which has a natural marginal cost of zero. RAND excludes
from implementation any businesses using peer production methodologies.