And what if Victor Hugo had to face literary patents?
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.
- [...] Now that the Prime Minister gave an opinion in favour of free softwares, what is the position of France on the subjet of patents on software concepts in the directive which the Council of Ministers is now considering. Do you, Minister, understand the disaster that is hanging on the software industry if the concepts implemented in computer programs can be patented. A desaster of course for free software, because we will not be able to serve the public if we must pay for this privilege, but also for the proprietary software industry and its users, and also for the large majority of private software and its customers, and even for the public administrations which also could be sued by patents owners for every little thing that is done on the computers of the State. Will France support the decision of the European Parliament to refuse patents on software concepts?
- I would not like to disappoint you but obviously it is not here, whatever friendship I have for Andre Santini, that the government will announce what is its position on this subject, which is a very complex subject, which is today debated within the Commission and also within the various Competitiveness Council in particular, and the various Councils that constitute authorities of the European Union. The subject that you approach is very significant, I completely agree with you. And actually this debate often gives place to the confrontation of two positions which appear both to me to have to be rejected. A position which consists in considering that any software must be free, and cannot be protected and another, as extreme, is that all softwares must benefit from a definitive protection, and thus falling under the reproach which you make. Here, there is an appropriate border to establish about software processes, some having to be, by their obviousness, in the public domain, others deserving to be protected. The software is an intellectual creation generating a property and actually often requiring very significant investments. And the intellectual property, it is in all cases the base of our society, not only as regards of software, dear Sir, but for example for literary matter, artistic matter, the intellectual property has the merit and the right to be protected. It is not protected in the absolute: at a given time, intellectual creation can fall into the public domain, naturally, and even must fall into the public domain. Victor Hugo is in the public domain. One has the right to publish it without expanding royalties. The use of his texts is completely free. As regards of software, obviously the deadlines cannot be the same ones because obsolescence in the field of data processing is extremely fast, but keep us of any extremisms, there is not a simple solution. Simply, it should be known where we will make pass the border. It is the debate which all Europe has in this moment, it is not laid down yet, and you take part in this debate in an interesting manner, what you are saying is useful, but I doubt, and for my part I am not favorable, that you be 100% satisfied.
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"
Claim 1: a communication process characterised in that it induces in the mind of a reader the concept of a character who has been in jail for a long time, so he felt sourness against society and humankind...
Claim 2: a communication process according to claim 1, characterized in that a character finds a moral redemption, through the kindness of another character.
Claim 3: a communication process according to any of claims 1 through 2, characterized in that a character is changing his name over the whole story.
Claim 4: a communication process according to any of claims 1 through 3, characterized in that a character manages to climb the social ladder.
Claim 5: a communication process according to any of claims 1 through 4, characterized in that a character is rejected by society because of an illegitimate child.
Claim 6: a communication process according to any of claims 1 through 5, characterized in that a character makes use of his social position to get someone out of jail.
Claim 7: a communication process according to any of claims 1 through 6, characterized in that a character promises to a dying person to take care of her child.
Claim 8: a communication process according to any of claims 1 through 7, characterized in that a character denounces himself so an innocent won't be punished instead of him.
Claim 9: a communication process according to any of claims 1 through 8, characterized in that a character hides his fortune.
"Les Misérables" confronted with these claims
Regarding such claims, many narrative elements of Les Misérables could obviously be subject of infringement for patent counterfeit:
Jean Valjean is a misanthropic and potentially violent ex-convict => infringement to claim 1.
The Bishop of Digne offers Valjean unconditional love, trusting the former criminal with his life and giving him all that he can. Through the kindness of Father Myriel, Valjean becomes a new man => infringement to claim 2.
Valjean gets a new name: Mister Madeleine => infringement to claim 3.
Via association with Myriel and his obvious kindness and generosity to others Madeleine gradually builds a successful and prosperous life for himself with a renovation of the jet-work industry in Montreuil-sur-mer, so he has now become known as Mayor Madeleine => infringement to claim 4.
One of his employees is -although unknown to him- fired by the head mistress because of an illegitimate baby. Fantine goes from one occupation to another, finally becoming a prostitute => infringement to claim 5.
A minor incident takes place in the streets, and Fantine is arrested by Javert. Valjean, who has become known as Mayor Madeleine, forces Javert to release her and takes her into his own house when he hears her story => infringement to claim 6.
Fantine is in extremely poor health, however, and dies without ever seeing her child again, even though Valjean had promised to get the child => infringement to claim 7.
Meanwhile, another man has been arrested and mistakenly identified as Valjean. Valjean appears in court, revealing the truth and losing both his business and his position in Montreuil-sur-mer => infringement to claim 8.
Although he is arrested, he breaks out long enough to hide his fortune => infringement to claim 9.
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:
- Communication process between a writer and a reader characterized in that the narration runs on numerous pages.
- [...] in that its structure sometimes seems to be like a fugue, even like improvisation.
- [...] in that the intrigue is articulated around the confrontation of some characters setting traps in turn.
- [...] in that the narration has the ambition to describe all the layers of the society and also its hidden wheels, leading to topics of conspiracy, leading also to social exoticism.
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):
- The Board is aware that its comparatively broad interpretation of the term "invention" in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper.
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"?
There was a fun proposal of arebenti to strike for the patentability of book-implemented inventions on bxl.