European software patent update

On 24 September 2003, after 19 months of consideration, the European Parliament voted on the software patent directive, and made substantial amendments to exclude patents on pure software and business methods. However, regular rows between the European Council and Parliament; the Council ignoring many of the Parliaments amendments; and the Committee for Legal Affairs of the European Parliament's (JURI) subterfuge tactics to try and push it through, mean that pure software patents in Europe are still a scary possibility

Restart the process?

Under the co-decision rules for European lawmaking, the European Parliament, Commission and the Council all have to agree to the text of the directive before it can come into force. However at this stage in the legislative process (it is now at its second reading), if the European Council continues to ignore the Parliament's amendments, it will be extremely difficult for the European Parliament to keep them.

An absolute majority (two thirds of all MEPs, or at least 367 votes) is required in a second reading for each Council amendment the Parliament wishes to reject. Every MEP absent in the plenary chamber that day and every abstention vote would count in favor of the Council proposal. In 2004, the University of Duisburg-Essen released a study which showed that on average only 56.2% of Italian MEPs took part in the 4,437 roll call votes held in European Parliament between 1999 and 2003. The most diligent MEPs are from Luxembourg with a presence of 85.2%. We would, in other words, have to encourage an abnormally high turnout of MEPs for an issue that struggles to capture their imaginations.

This is even more worrying when you consider that a majority of the MEPs currently in parliament were elected in 2004 and did not even participate in the first reading of the directive. Ten new countries, with no previous say in the directive, also joined the EU in 2004. If the council position is officially announced, the Parliament will be forced to vote on the second reading within three to four months. This would give a relatively new Parliament little opportunity for discussion and consultation, and could lead to software patent loopholes if critical amendments were left out.

On the 2nd of February, JURI is set to decide whether or not to restart the procedure. This decision has only been possible because of a motion, signed by 61 members of the European Parliament, calling for a new first reading of the software patent directive. Poland has also helped significantly by repeatedly postponing the adoption of the Council's software patent agreement, but can only do this for so long before other states pressure them on issues more important to the Polish economy.

A complete restart is one of the best (and only) feasible solutions left. As there are no absolute majority requirements in first readings, it would be easier for European Parliament to pass amendments. The Council would have to have a new first reading, canceling their current pro-software patent position and putting pressure on them to avoid adopting a similar stance so contrary to the will of Parliament. A restart would also enable new member states to have their say from the beginning, making it a more democratic directive.

What can you do?

The only reason we don't have software patents in Europe is because of the efforts of activists protesting and lobbying against them. In Europe, according to the European Patent Office, already 7% of applicants hold more than 50% of patents. If we don't want to go down a path whereby a start-up or open source company with no patents will be forced to pay whatever price larger corporations choose to impose, we must get out there and fight to stop it happening. Here are a few ideas to get you started:

• Help spread the word about software patents by joining the Web Demo. Register your site at http://demo.ffii.org/.

• Contact a member of JURI with your concerns about software patents and your support for a restart of the software patent directive. The JURI committee has members from many different European member states, and these MEPs are best contacted by people from their own countries, since they will be much more likely to respond and raise your concerns within JURI. Find your MEPs here.

• Contact your local MEPs to lobby members of JURI on your behalf. If you don't have time to seriously lobby a member of JURI, get your local MEP to do it for you. MEPs are supposed to represent their constituents, so let them help you get your message across. Find out who they are here.

• Visit European Parliament in Brussels to lobby MEPs (especially the JURI committee) about software patents. Ask for more information on this mailing list.

• If you are too busy to do any of the above, you might consider donating to organizations like the FFII and the Electronic Frontier Foundation, who are trying to ensure that software patent legislation is compatible with small and medium enterprises as well as free or open source software. Large software companies employ people to do nothing but patent lobbying, so we need to support those people who are opposing them as much as possible.

(Edward Griffith-Jones contributed to the writing of this article).

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GuestArticles	Chance, Tom

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