LiteraryPatentsEn

And what if Victor Hugo had to face literary patents?

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Just as for writing of novels, copyrights regime is fully appropriate to writing of softwares. But, just as software patents would have dramatical consequences on software innovation in Europe, the existence of "literary" patents would harm literary creation. This article analyses how Victor Hugo would have difficulties to write Les Misérables if he had to face some hypotetical patents on literary.

Preamble

Heard in the 5th eDemocracy forum, after a declaration by the Delegate Minister for Industry, Patrick Devedjian, Richard Stallman is asking the following question:

Richard Stallman:

Patrick Devedjian:

The analogy evoked by Mr. Devedjian between literature and software is completely relevant. Just like to the writing of novels, the copyrights regime is perfectly adapted to the writing of software.

The GPL (General Public License), created by Richard Stallman to regulate the legal aspects related to GNU system, is strongly based on copyrights. Richard Stallman himself always point out the distinction between free softwares and the legal concept of "public domain".

But just as software patents would have dramatic consequences for data-processing innovation in Europe, the existence of "literary" patents would be quite as prejudicial with creation of novels.

And since Mr. Devedjian talks about Victor Hugo, let us analyse how the French author would have been in evil to write Les Misérables if he had to face patents on literature.

Example of "literary patent"

"Les Misérables" confronted with these claims

Regarding such claims, many narrative elements of Les Misérables could obviously be subject of infringement for patent counterfeit:

The above examples are extracted only from the first part of Les Misérables, which counts five of them, but they already show that cut down by these major narrative elements, Hugo's achievement would have had great difficulty to be born if the literature were encumbered by patents.

Blocking by broad claims

And if Hugo's literary genius had endeavoured a fashion to circumvent these claims on rather precise points, what would it be with much broader claims?

Hugo could certainly still have described the battle of Waterloo, a possible patent deposited by Stendhal on this point would have expired when Les Misérables were published in 1862 and La Chartreuse de Parme, where this battle is evoked, dated of more than twenty years (1839).

But it would be impossible for Hugo to make use of this Parisian slang described so well in Les Misérables if Eugene Sue had been able to deposit a patent above with Les Mystères de Paris in 1843.

Lastly, how to write a "social adventures saga novel" if Eugene Sue, with Les Mystères de Paris and Le Juif Errant, Alexandre Dumas, with Le comte Monte Cristo, or Honore de Balzac, with /Splendeur et Misère des Courtisanes, had patented this kind of novel being based for example on very broad claims like those:

Conclusion

For Les Misérables have a chance to belong one day to the public domain, as recalled by Mr. Devedjian, it is still necessary that they are written. However, as we have just seen it, some "literary patents" would obviously have prevented this writing.

The same applies to the software. What Richard Stallman asked at the time of this forum to Patrick Devedjian is not, like the latter believed, that "any software must be free", but simply that he could still be free to write some.

It has been demonstrated that the text for which the French delegation, to which Mr. Devedjian belonged, gave its political agreement to the Council of European Union on May 18th, 2004, indeed authorized patents on pure software. See on this subject "Urgent Appeal" sent by FFII, where Patrick Devedjian was among the recipients, and excellent analysis by Philippe Aigrain or François Pellegrini.

Lastly, let us note that patents on literature, such as we've just described them, are not pure speculations, as testifies this decision of Boards of Appeal of the European Patent Office, concerning a patent filled by Hitachi on automatic auction method was really (Case T 0258/03):

However, although they are prohibited in the European law, tens of thousands of software patents were accepted by the European Patent Office (EPO). And this in particular because the lawyers write patent applications by emphasizing the technical aspect of innovations. It is easy to describe a computer program in a technical way since any software can "be loaded and executed in a computer, programmed computer network or other programmable apparatus" - note that we have quoted here the formulation used by the Council of UE in its article 5(2) of the European directive on software patents.

If some claims on literary creations are crafted as we did above, will the OEB finish by granting patents on "literary inventions"?

Other info

There was a fun proposal of arebenti to strike for the patentability of book-implemented inventions on bxl.

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