Industry Committee study on Science and Technology is underway
(First published on IT World Canada blog)
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.