One problem with governments is that, unsurprisingly, powerful interests
try to direct governmental power toward their own ends. Those who
would fight power grabs quickly learn a hard lesson: those pushing for more
power usually need only win once, while those who oppose them must win over
and over again. This dynamic can be seen, for example, in the current
broadcast flag debate in the U.S. This flag has already been defeated
once, but nobody doubts that it will return, perhaps repeatedly.
In Europe, the debate on software patents is likely to go the same way.
Those who have a substantial amount to gain if software patents are adopted
throughout the EU are unlikely to simply give up just because they lost the
battle last July. So software patents in Europe will almost certainly be
back. Now it is starting to look like the vehicle for the next attempt to
impose software patents might be a process called the "Community Lisbon
This program is part of an effort to improve the health of European
economies by making the EU as a whole more efficient and competitive. It
is a large undertaking touching on many areas, including regulation, internal
markets, environmental issues, global trade agreements and more. Deep
recently-released document [PDF] on the implementation of the program
is a section on intellectual property rights ("IPR"). It reads, in part:
Companies and their clients need IPR which stimulates innovation,
provides a stable context in which to make investment decisions,
and encourages the development of efficient new business
models. The debate engendered by the proposed directive on the
patentability of computer-implemented inventions has demonstrated
that framing IPR rules which balance the needs of all stakeholders
is by no means easy. The Commission will therefore launch a
dialogue with industry and other interested parties in 2006 to
determine what more might usefully be done to provide European
industry with a sound IPR framework.
It is not hard to imagine that the result of this process could be a
renewed directive establishing software patents in Europe. This time,
however, it could be buried within a much larger chunk of EU-level
industrial policy legislation, and, thus, harder to defeat.
Clearly, the free software community needs to be among the "other
interested parties" participating in this process. We have many thoughts
on what makes up a "sound IPR framework," and they should be heard early
on. In the later stages of this program, when it truly comes into public
view, it will be too late to effect changes on issues like patents.
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