[ILUG] Irish Constitutional Challenge to Software Patents

[Eamon O'Tuathail]

Thanks to the "gentle" encouragement of Colm MacCárthaigh, I have been
examining what rights software authors have under the Irish Constitution. I
have put them together is this draft of a letter for Ms. Harney. 

Any comments on the draft below would be helpful. 

============================================================

"He who receives an idea from me, receives instruction himself without
lessening mine: as he who lights his taper at mine, receives light without
darkening me."  -- Thomas Jefferson

Dear Ms. Harney,

I wish to bring to your attention the role of BUNREACHT NA hÉIREANN, the
Irish Constitution, in the current debate on software patents. Whatever
stance you ultimately take on software patents must be compliant with the
rights Irish citizens have under the Irish Constitution with regard to their
intellectual activities.

In the not too distant future, were software patents to be allowed within
Ireland, small and medium sized Irish software companies will be facing
patent infringement lawsuits. Some Irish SMEs will simply have to shut down
as they will not be able to fund the horrendous legal costs of a defence,
but some will fight in court. I believe they will find a solid defence
against software patents within the Irish Constitution. 

Before you consider introducing software patents and start causing
potentially fatal problems for Irish software SMEs, I request that you
discuss the points I raise below with your Constitutional lawyers. 

You will find a copy of the Irish Constitution here:
http://www.taoiseach.gov.ie/upload/publications/297.htm
It is long, so you will have to use your web browser's search feature to get
to the various Articles of the Constitution. It is also in PDF format here:
http://www.taoiseach.gov.ie/upload/static/256.pdf

========================================================================

Writing software is a form of communication and expression. If I write this
line of software:
x = 4 + 5;
and you read it, I have communicated with you. We will examine software as a
form of expression in detail later.  

The section of the Constitution entitled Personal Rights, Article 40.3.1
states:
"3. 1° The State guarantees in its laws to respect, and, as far as
practicable, by its laws to defend and vindicate the personal rights of the
citizen."
http://www.iccl.ie/constitution/fos/98_censor11.htm
Many rights are covered by "personal rights" - The Supreme Court has decided
one of them is the Right to Free Expression. This right has significant
scope, but you do not have absolute right to free expression. There are
other personal rights - such as the right of others to their good name and
the right of others to privacy, which limit your right to free expression.

This is backed up by the European Convention on Human Rights - Article 10 is
here: http://www.hri.org/docs/ECHR50.html#C.Art10 
which includes:
"Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. "
(This has been incorporated into Irish Law as the EUROPEAN CONVENTION ON
HUMAN RIGHTS ACT 2003 (http://www.ucc.ie/law/irlii/statutes/2003-20.php)

Included in the Irish Constitution's right to free expression is the right
to remain silent. In the "Heaney and McGuinness v Ireland" case:
http://www.hri.ca/fortherecord2000/euro2000/documentation/judgments/applno34
720-97.htm it states:
"The Supreme Court considered that the right to silence was a corollary to
freedom of expression guaranteed by Article 40 of the Constitution and that
the relevant assessment was to consider the proportionality of the
restriction on the right to silence in view of the public order exception to
Article 40 of the Constitution." Also see here:
http://www.lawlibrary.ie/pdfs/paddymcentee.pdf
http://ted.examiner.ie/archives/2000/december/23/current/ipage_7.htm
http://www.lawsociety.ie/newsite/documents/members/hrkeal.pdf

So software authors, like any other Irish citizens, have a right to free
expression (to write software), a right to remain silent (not to write
software) and a right - without frontiers - to impart information and ideas
without interference. Software users have the right - without frontiers - to
receive information and ideas without interference. We will call this
ensemble of rights our Bundle of Free Expression Rights. 

In the section entitled Private Property, Article 43.1.1 states:
"1. 1° The State acknowledges that man, in virtue of his rational being, has
the natural right, antecedent to positive law, to the private ownership of
external goods."
Intellectual activities are not external goods - so you do not have a
constitutional guarantee of property ownership of what happens inside your
mind. Hence the term "Intellectual Property" when used in a legal sense is a
nonsense in Ireland, as it has absolutely no Constitutional basis here. The
Constitution has exceptional strong backing for property rights (perhaps too
strong) - ask any Irish county council building a road or any hill-walker
trying to cross an Irish mountain. However, they don't apply to your
intellectual activities. If I memorise a poem and it is now inside my mind,
I don’t own it. If I write a poem, it will include words and phrases that
others originated and will probably describe literary images of life that
others shared, and much of my poem will just be a transformation of this
common heritage - so again, I don’t own the actual poem, in a Constitutional
property sense. You will know that copyrights and patent rights evaporate
after a number of years, and the originators have no control over the
intellectual activities after that. If people really had property rights
over their intellectual activities, they would never evaporate, regardless
of patent law or copyright law. This is not the case, which again proves our
intellectual activities are not property in a Constitutional sense.  (Which
is good). 

Authorship - the act of creating expressions in writing - has a very rich
history in Ireland. The concept of rights for authors was invented in
Ireland in A.D. 561,
(http://www.rte.ie/culture/millennia/people/colmcille.html and
http://www.copyrightprotection.com/history.htm )
when Kind Diarmaid said:
    "Le gach bain a bainin, le gach leabhar a leabhrán." 
    "To every cow its calf, to every book, its copy"
Some people mistakenly believe this famous ancient Brehon law judgement was
just economic. There is no evidence for that limitation - I argue it would
be much more in tune with the scholarly activities of the time to assume the
King assigned many rights to authors - including economic (I can earn a
pecuniary return for my writing), moral (right to be acknowledged as the
author), expressive (right that I can write what I want in my book),
publishing (right to publish/widely distribute my book) and freedom from
censorship (right that I, and not the censor [or patent office!], decide
what to do with copies of my book) and other rights of authorship. We will
call this ensemble of rights our Bundle of Authorship Rights.

I argue that all these rights of authorship still exist in modern times,
distributed within the Constitution and the laws derived from it. For
example, I believe the "personal rights" phrase of Article 40.3.1 includes
the moral right to be acknowledged as the author of your writings (and not
to have you name associated with something you did not write). This is
covered by your right to your good name, which court cases have concluded is
one of these unenumerated "personal rights".  The economic rights of
authorship are covered by modern copyright law. According to:
http://www.cs.tcd.ie/Proinnsias.OCillin/lawcourse/int-ppty/constitution.htm
"Copyright has been recognised as a right of private property protected by
articles 40.3.2 and 43.1 of the Constitution (Phonographic Performance Ltd
v. Cody and Princes Investments Ltd, 1994 2 ILRM 241). " 

Interestingly, the next sentence on this same web page states: "The
constitutional right to publish information, which does not involve a breach
of copyright, was upheld in Attorney General for England and Wales v.
Brandon Book Publishers Ltd, 1987 ILRM 135)." This is important, because we
have the right of publication of information in the form of our own
expressions (not someone else's expressions). 

Those who create software writings, which is simply a modern form of
authorship, must have all the above rights of Authorship - and not just the
economic rights.

Finally, let's look at patents. These refer to ideas susceptible of
industrial application. Section 79 of the Irish Patent Act, 1992,
(http://193.178.1.79/1992_1.html) state that: "the rules of law applicable
to the ownership and devolution of personal property shall apply in relation
to patent applications and patents as they apply in relation to other choses
in action." Note that the property is the patent, not the idea. You buy and
sell patents, you do not buy and sell ideas. This is important, because once
you have a patent, it is subject to the strong property protection of the
Irish Constitution, but the idea itself is not. There is no Constitutional
basis for arguing that once you have an idea, you can treat it as property.
This allows sensible Ministers to decree that software ideas cannot be
patented, and not fear legal attack from those in favour of software
patents, claiming they had a software idea and it should be considered
property under the Constitution. 

So we have a bundle of free expression rights, a bundle of authorship rights
and patent rights. What happens when they conflict? There needs to be a
hierarchy. Since the free expression rights are human rights - I believe
courts will agree that the bundle of free expression rights is the most
important. It is clear patent rights, being merely economic (whereas
authorship rights are much more than that), come at the bottom, and
authorship in the middle.

For example, if I were to steal a man's wallet and hide it, and the police
find me, and I assert my right to remain silent - the police are not allowed
torture me until I reveal the location of the wallet. The property rights of
the wallet's owner do not triumph my right to remain silent. 

=====================================================================

Software authors write software. That software is a form of communication. A
line of software such as "x= 5 + 4" tells you the reader something, so you
can tell me what value x is. Go into any major bookshop in Dublin, and in
the computer software section, pick out a random book. You will see
paragraphs with English sentences, and paragraphs in programming languages.
There is no question but that both parts of the book are communicating with
the reader, provided that the reader understand the English language and the
programming language. If you remove the English paragraphs, you still have
communication occurring via the paragraphs written in programming languages.


Let's look at the many similarities between book authors and software
authors. Both “type” in “text” at “a keyboard”. After “review”, book authors
and software authors “edit” their works. When finished, book authors and
software authors “publish” their works. Book authors and software authors
write in “languages”. Book authors and software authors use “expressions”
widely (software authors use the “for” expression, the “if-else” expression,
the “while” expression, etc.). Book authors and software authors combine
expressions into statements, which in turn are often combined to carry out
dialogues - for the book author, between fictional characters in the book,
and for the software author, with human users (that is why, not
surprisingly, conversations with users are controlled by something called
dialogue boxes, because literally a dialogue is really taking place  -
between the software author and software user; with the artificial computer
acting as a proxy for the software author's brain - which is a human
computer).

As far as I am aware, there have been no legal cases in Ireland where free
expression rights and software have been discussed. There have been
interesting cases in the U.S. - and the judges have clearly decided that
writing code is a form of speech. Extensive legal research went into these
proceedings, and I believe the same legal arguments, when presented in an
Irish court, will also clearly show that writing software is a form of
expression. I ask you to read:
http://digital-law-online.info/cases/60PQ2D1953.htm
particularly the sections entitled:
   2. Computer Programs as Speech 
   3. The Scope of First Amendment Protection for Computer Code
It also quotes lots of preceding cases. You can also read the Electronic
Frontier Foundation's page on "Court Overturns Ban on Posting DVD
Descrambling Code, Finding a Free-Speech Violation" here:
http://www.eff.org/IP/Video/DVDCCA_case/20040227_eff_pr.php

=====================================================================

The current European Council's proposals are to allow program claims within
European software patents. In effect, allowing the computer program itself,
and not the combination of the computer program running on a computer, to be
patented. The computer program is a form of human expression, and it is a
work of authorship, so clearly if you try to permit this in Ireland, you
will be both breaching Irish software authors' Constitutional right to free
expression, and breaching their right of authorship to publication of their
own expressive works. At a practical level, Dublin bookshops selling
software books will be infringing patents! 

COMPUTER = HUMAN BRAIN and SOFTWARE = HUMAN MIND
When software runs on an artificial computer, it carries out a conversation
with the end-user. Neither the guitarist who sells a music CD nor a software
author who sells software need to be present when the audience starts
enjoying their creative work. The creative endeavours of both must have free
speech protection. Thought the guitarist is directly influencing to the
guitar strings and the software author is directly influencing the
artificial computer, both wish to carry our intellectual communications with
the other humans - the audience for their creative work.   

By permitting software patents, you:
* breach the free expression rights of Irish software authors
* are interfering with the authorship right to enjoy the economic fruits 
  of the work (authors cannot sell copies of their software to end users and
recover the full economic fruits of their labour) 
* are prohibiting software authors their right to - without frontiers -
impart information and ideas without interference (note the "and ideas" part
of this European Convention on Human Rights quote)
* are prohibiting software users - without frontiers - to receive [from
software authors] information and ideas without interference
* are allowing patent lawyers to censor the expressive works of software
authors
* are prohibiting the authorship's right of publication of their own
expressive work

Next I wish to direct your attention to section 19.1 of the Irish Patent
Act, 1992, which states:
"A patent application shall disclose the invention to which it relates in a
manner sufficiently clear and complete for it to be carried out by a person
skilled in the art."
And to Article 83 of the European Patent Convention, which states:
"Disclosure of the invention
The European patent application must disclose the invention in a manner
sufficiently clear and complete for it to be carried out by a person skilled
in the art."

Irish citizens have a Constitutional right to remain silent, which includes
the right not to write software expressions. The rights of the Irish citizen
still apply when carrying out the disclosed invention in a patent. A
mouse-trap technician or the pharmaceutical technician is not forced to make
expressions while carrying out those types of patents. They may, of their
own free will, do so during this activity (e.g. writing notes in a lab), but
such expressions are tangential to the invention, and the citizen decides
what ideas to used as the basis for these expressions. In stark contrast,
were a software author carrying out a software patent, he or she is forced
to write expressions, this is pretty much the only activity, and worst of
all, and the ideas behind these forced expressions are defined by others.  

Another important point is that the skilled technician who is carrying out
the invention may have relevant utilitarian skills - but it most certainly
cannot be assumed that he or she has specific expressive skills. So again,
patents that mandate expressive skills are simply invalid. You cannot write
software during patent enablement. 

===========================================================================

Patenting of software is a slippery slope to patenting of more traditional
forms of expression. Every argument used to promote software patents
(increase a country's wealth, higher investment, encourage creativity) could
also be applied to encouraging patents on, say, a TV show. Have you ever
wondered what a patent on the structure of a TV show would look like? It
would not be defined as such, but rather as a business method patent. It has
started in the U.S. - here is one funny but genuine example:
http://lawgeek.typepad.com/lawgeek/2004/04/silly_internet__3.html

You need to devise a way which unambiguously checks the ever-expansion of
patents. Acknowledging the Irish Constitutional right to remain silent
during patent enablement would be my recommendation.

With regards,

Éamon Ó Tuathail
Tel: 01-2350424
mailto:eamon.otuathail at clipcode.biz
http://www.clipcode.biz