Month: January 2009

Categories
defamation

Omani Forum Member Imprisoned for Defaming Policeman

Policeman Defamed by Forum Member(Photo credits: Geff Rossi)

Omani Arabic newspaper “Azzamn” reported today a recent online defamation decision by the Elementary Court to imprison a person for posting on an  online discussion forum claiming that the victim, a policeman, tortured to death a theft suspect.

Medical evidence was used in the case to prove that the death of the deceased theft suspect was natural. It was also noted that the defendant had previous arguments with the victim as the brother of the defendant was held in the same centre for the same theft case for which the deceased theft suspect was being held. Azzamn says that the defendant wrote what he did to get back to the policeman who refused one of the visits to his brother.

The court held that the defendant was guilty for two offences, the first under section 173 of the Criminal Law for insulting an employee while carrying out his employment duties or insulting him on the basis of the performance of his employment duties. The second offence was made under section 182(2) for claiming that another person is guilty of a crime for which he knows he is innocent or for which he fabricated evidence for the creation of such crime. 

The court decided to sentence the defendant to a one-month imprisonment for the crime of false-incrimination under section 182(2) and 15-days for the crime of insult under section 173.

This is an interesting case because it shows us that there is more than one ground for establishing defamation, if what you post constitutes a false-incrimination under section 182 then you would be liable for an additional  penalty that is greater than the penalty for a regular insult.

Link to Azzamn Article (Half way through the page – Arabic only).
Link to another recent Omani online defamation case.

Categories
Copyright Creative Commons

Al Jazeera Publishes Videos Under Creative Commons License

Al Jazeera Goes Creative Commons
Al Jazeera announced last week the launch of a creative commons repository to host videos of the Gaza crises  under a Creative Commons Attribution License. This is a big win for the Creative Commons movement as Al Jazeera is the first major broadcaster to license any of its content under Creative Commons.

This announcement means that bloggers, competing broadcasters and anybody else can use the videos of Al Jazeera for free as long as they simply mention that original video was made by Al Jazeera. This would have not been possible otherwise due to copyright protection of the work. By using the CC Attribution License Al Jazeera explicitly permits all to use the licensed copyright work in any way they please, whether commercial or not, as long as they simply attribute the source.

I will hopefully write more about Creative Commons in the future. This is a nonprofit corporation that aims to create the a legal framework for individuals to share the creative work of each other and build upon it.

Categories
defamation

Recent Omani Web/Press Defamation Judgement

Newspaper Defamation(Photo credits: birdfarm)

The Supreme Court in Oman recently confirmed the reversal of a judgement holding a newspaper reporter guilty of defamation for referring in an article he wrote on the newspaper to a website containing defamatory statements of a person. The decision of the Supreme Court was reported two days ago by Al Shabiba Newspaper here (available in Arabic only).

It is hard to know what the exact facts of the case are from the decision as the case was tried before the Elementary Court and the Court of Appeal before getting the Supreme Court. Apparently what happened was that a women was defamed on a website, then the reporter wrote an article on the newspaper criticising some websites that defame people. The reporter had to go to court because it was claimed that what he wrote also amounted to defamation.

I am not sure what the article exactly said, but the article mentioned (1) the name of the defamatory website and (2) that it was published on the website that an “unnamed” female chairman of a company reached her position because she had a sexual relationship with an ambassador. This story was cited in the article as an example of defamation going online.

The prosecution argued saying:

فقد قام المتهم خلال شبكة المعلومات في الجريدة تحت غطاء النقد لما ينشر من خلال شبكة المعلومات إلا أنه في حقيقة الأم قد قصد الإساءة إلى المجني عليها وليس أدل على ذلك من قيامه بالإفصاح عن اسم وبيانات الموقع الذي يسيء إلى المجني عليها ويطعن في سمعتها وشرفها وأنها قد وصلت على منصبها كرئيس لمجلس ……………. لارتباطها بعلاقة غير أخلاقية بالسفير الأمر الذي فتح الباب أمام الكافة وأثار فضولهم للدخول على الموقع المشار إليه والاطلاع على ما يمس شرف وكرامة المجني عليها وحياتها الخاصة

What the first defendant published under the cloak of criticism was intended to attack the victim. The proof of this was the fact that he disclosed the name and the details of the defamatory website and that she reached her position because of her sexual relationship with the ambassador. This made the public curious to go to the website to learn about the violation of the honour of the victim and her private life.

The court said that for the crime of defamation to take place two elements must be established, (1) statements of defamation, and (2) making these statements in public.

ما يتعين إثباته في حكم الإدانة بجريمة إهانة الكرامة أمران : أولهما عبارات الإهانة، وثانيهما علانية الإسناد

The court held that the article was not defamatory because it did not mention the name of the victim, it did contain anything insulting of her or anything descriptive of her personal life. It also said that the arguments provided by the prosecution were “unsavory, unacceptable, and without any legal basis” as the article “criticised these websites and demanded they stop defaming people”. The court concluded that the original judgement is to be reversed as no defamation took place.

While this might now seem obvious, it was not obvious to the Elementary Court as it held the newspaper reporter guilty of defamation. The Supreme Court only held that defamation did not take place because the article did not mention the name of the victim.

We can learn from this case that defamation can occur throughout a chain. The fact that you are reporting (or blogging) about an incident of defamation can easily make you liable for it as well if what you write can be considered as defamatory statements even if these statements did not necessarily originate from you and you are merely reporting current events.

Categories
patents

Software Patents (EU, US, and Japan)

Software Patents(Photo Credits: Leonard Low)

A patent is a powerful tool that grants monopoly over an invention you make. The scope of its protection differs from copyright. In the context of software, copyright will only protect literal copying of the code, but it will not protect against the recreation of the same program using original code – even if the new application has program or even identical functions to your program. A patent on the other hand grants protection for the application of the ideas of the program regardless of how that application happened, so even if your program was written using a new completely different code, if that program carries out a process or creates a product similar to what you have your patent application, then you would have the right to stop them from using that program or you can claim damages for their infringing use.

The problem with computer programs (and business methods as well) is that they are generally considered as subject matter which is unprotectable by patents. Each jurisdiction has a different reason behind this ban of software patents and also provides a way to go patent your software “around” the allowed subject matter.

In Europe, patents are granted by the European Patent Office which governs its patent grant procedure through the European Patent Convention 2000.  According to Article 52(2) of the EPC computer “programs for comoputers” are not to be regarded as inventions as such. The keyword here is “as such”. The EPC has been interpreted by the EPO in a way that excludes only computer programs when they are claimed to be “the invention” itself as that would be a claim to an excluded subject matter “as such”.

EPO decisions were inconsistent and unclear as to their legal grounds for granting this protection and it suggests that a computer program will not be excluded if the program includes a ‘technical character’, but there is not definition as to what ‘technical character’ means. In mid 80s decision of Viacom (T-208/84), the EPO held that the invention in question made a “technical contribution to the known art” and was therefore patentable. This decision was followed by that of IBM (T-22/85) in which the patent application was refused on the ground that it the invention lacked a “technical character” as it did not “provide a technical contribution to the art”.

The principle shifted for a “contribution” of this vague “technical contribution” element to the need for the presence of this “technical character” element in the invention itself. In the decision of Hitachi (T/258/03) it was stated that “What matters having regard to the concept of invention within the meaning of Art.52(1) EPC is the presence of technical character which may be implied by the physical features of an entity or the nature of an activity, or may be conferred to a non-technical activity by the use of technical means”. No definition was given as to what “technical effect” meant, and instead the EPO admitted in PBS Partnership (T-931/95) that “the meaning of the term “technical” or
technical character” is not particularly clear.”

Although the EPO has granted many patents for computer programs, the grounds for doing so do not seem to be clear at all at the term “technical character” was never defined. However, the key to getting a European patent from the EPO for a computer program would be not to claim the invention as a computer program and instead attempt to claim it as invention for doing something using a computer program. Claims in the patent application must also be carefully drafted to make sure that they do not fall under any other exceptions under 52(2) for abstract ideas or business methods.

In the US, the Patent Law (Title 35 USC) does not include a statutory bar on computer programs or business methods, however, this exception was developed through case law as it was established that “laws of nature, physical phenomena and abstract ideas” are not patentable subject matter (Case:�Diamond v. Diehr (1981)). The application for many computer program patents failed on the grounds that there were mere abstract ideas as all they were constituted of mathematical formulas.

This position changed in the year 1998 where the court held in the case of State Street Bank v. Signature Financial Group (1998) that a business method will not not be considered an abstract idea if it produced “a useful, concrete and tangible result”. The same principle was then applied to many computer applications as, for example, the production of computer data that resembles a real life solution (e.g. stockmarket prices) produces a useful, concret, and tangible result. One of the most famous business method patents granted in the US is Amazon’s 1-click patent.

However, in the very recent case of Re Bilski (2008) the court rejected the principle of the mere need of “a useful, concrete and tangible result” of State Street as the ultimate saviour of business method patents stating that it was “inadequate”. The court held in this case the right to test to use was a “machine or transform” test which requires the business method to be attached to a specific machine for it to qualify as an invention OR for the business method to transform a particular article into a different state or thing.

Re Bilski is a very recent case and the exact impact of it on the scope of computer programs is still unknown, but it has surely reduced its scope significantly as no longer the fact that the program produces ‘a useful, concret and tangible result’ is sufficient for it to qualify as an invention, but it must be attached to a specific machine or must be a transformative process.

In Japan, the law requires an invention to be “a creation of technical ideas utilizing a law of nature”. This has meant for Japan that pure software patents will not qualify as they do not are not ‘technical’ in nature (even Software as a subject matter is explicity considered as patentable subject matter), however, the JPO Guidlines states that this requirement can be satisfied by simply “realising the program using hardware resources” – and that apparently provides the technical element needed for escaping the requirement. (Check JPG Guidelines for Computer Software Related Inventions – Warning PDF).

Software patents will not automatically succeed if they prove that they are not included in any of the exceptions found in various patent laws, each of these jurisdictions require a patent to be novel, non-obvious, and be capable of industrial application (or useful in the US).