Software Patents: EU Council Plans to Scrap Parliamentary Vote

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  EU Council Plans to Scrap Parliamentary Vote without Discussion
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2004/05/07

For immediate Release

  The EU Council of Ministers is demonstrating that the concept of
  democracy is alien to the EU. This Wednesday, the Irish Presidency
  managed to secure a qualified majority for a counter-proposal to the
  software patents directive, with only a few countries - including
  Belgium and Germany - showing resistance. The new text proposes to
  discard all the amendments from the European which would limite
  patentability. Instead the lax language of the original Commission
  proposal is to be reinstated in its entirety, with direct patentability
  of computer programs, data structures and process descriptions added as
  icing on the cake. The proposal is now scheduled to be confirmed without
  discussion at a meeting of ministers on 17-18 May, unless one of the
  Member States changes its vote. In a remarkable sign of unity in times
  of imminent elections, members of the European Parliament from all
  groups across the political spectrum are condemning this blatant
  disrespect for democracy in Europe.

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Proposals slammed by MEPs from all sides
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Anne Van Lancker (MEP, BE, PES): Parliament Overruled by Patent
Office Administrators

  Anne Van Lancker, a Belgian MEP of the Socialist group, notes that the
  civil servants who are supposed to abide by this directive are now the
  ones who can write their own laws:

    The Council not only ignores the European Parliament in this matter, but
    adds to the insult by going even further than the Commission: in
    addition to making the usage of patented algorithms and business methods
    in computer programs an infringement, they also propose to forbid their
    publication, by allowing direct claims to information entities (also
    known as "program claims").

    Given that the current Council proposal was written behind closed doors
    by patent office administrators, this unworldly outcome should not
    surprise anyone, unfortunately.

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Piia-Noora Kauppi (MEP, FI, EPP-DE): Council Ignores Elected Representatives

  Piia-Noora Kauppi, Finnish MEP of the European People's Party, expresses
  dismay at the Council Working Party's contempt for parliamentary democracy:

    As the Council is trying to look for a compromise with the European
    Parliament on the proposal for patenting of computer-implemented
    innovations (software patents), it should base its work on the final
    decision taken by the plenary session of the Parliament, not on that of
    the Commission or of the Legal Affairs Committee. Judging from the
    papers produced so far by the Council's working party, it seems that the
    Council is not taking the will of Europe's elected legislators into
    account.

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Pernille Frahm (MEP, DK, GUE): Council and Commission Failed to do
their Homework

  Pernille Frahm, Danish member and Vice-Chairwoman of the GUE/NGL group,
  finds that the European Commission and Council are abusing their
  functions and failing to play their role in EU legislation:

    The patent administrators in the Commission and Council are abusing the
    legislative process of the EU.

    Their convoluted and misleading Patent Newspeak, negotiated in
    intransparent backroom dealings, is an insult to the European
    Parliament, the European Economic and Social Committee, the Committee of
    Regions and the innumerable experts and stakeholders who have engaged in
    serious investigations on this directive project with us. Not only did
    the Commission and Council fail to do their own homework, they are now
    also attempting to throw away all the hard work that the elected
    legislators did for them, without even trying to respond to the concerns
    which have been raised.

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Daniel Cohn-Bendit (MEP, FR, VERD): Patent Administrators Not
Interested in "Harmonisation and Clarification"

  Daniel Cohn-Bendit, chairman of the Greens/EFA Group adds:

    The Council working party has so far completely failed to address the
    problems which the European Parliament's Cultural and Industrial Affairs
    committees tried to solve. They behave in the same way as the Legal
    Affairs Committee behaved last year, and we can expect that they will
    fail in the same way.

    It is clear that the national patent officials in the Council do not
    want "harmonisation" or "clarification". They merely want to secure the
    interests of the patent establishment. If they don't get what they want,
    they simply bury the directive project and try to find other ways to get
    around the existing law, whose clarity is so painful to them.

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Bent Hindrup Andersen (MEP, DK, EDD): Council Moves Highlight Lack
of Democracy in the EU

  Bent Hindrup Andersen MEP of the Danish June Movement and the EDD Group
  draws attention to the lack of democracy in the EU which is exemplified
  by the Commission's and Council's behaviour:

    The approach of the Commission and Council in this directive is
    shocking. They are making full use of all the possibilities of evading
    democracy that the current Community Law provides. First they ignored
    94% of the participants of their own consultation, without given any
    justification apart from the claim that the remaining 6% represented the
    "economic majority". Now they are completely disregarding the vote of
    the European Parliament, and by the way also of the Economic and Social
    Council and of the Council of Regions. They are doing this because they
    are used to succede by doing this. The EU is constructed this way. It
    makes unaccountable bureaucrats the masters of legislation. The problem
    is compounded by the complete lack of democratic checks and balances in
    the European patent system. EU and Patents combine into a particularly
    toxic mixture. Europe's citizens urgently need to take up this issue and
    learn the lessons before it is too late. They should in particular not
    allow this kind of structure to be perpetuated by a European
    Constitution this year.

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Johanna Boogerd-Quaak (MEP, NL, ELDR): Irish Presidencey Protecting US
Companies from EU Competition

  Johanna Boogerd-Quaak, a Dutch member of the European Liberal, Democrat
  and Reform Party, indicates that Ireland seems to be playing lapdog for
  the US:

    I'm under the impression that the Irish Presidency has buckled under the
    interests of American Companies. A handful of big American Companies may
    actually profit from software patents, but it is a very bad deal for
    innovation in European SMEs. Additionally, the Council is showing
    contempt for parliamentary democracy. We must make sure that after the
    elections there will again be a majority in the European Parliament that
    is willing to show its teeth.

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Call for Action II

  More than 20 parliamentarians have signed a Call for Action
  <http://swpat.ffii.org/papers/europarl0309/demands/index.en.html>
  which points out that "patent professionals in various governments and
  organisations are now trying to use the EU Council of Ministers in order
  to sidestep parliamentary democracy in the European Union" and urges the
  Council to "refrain from any counter-proposals to the European Parliament's
  version of the draft, unless such counter-proposals have been explicitely
  endorsed by a majority decision of the member's national parliament".

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Details
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  The powerful COREPER committee of EU member states' Permanent
  Representatives in Brussels has provisionally agreed on a new draft for
  the controversial Software Patent directive, overruling opposition from
  Germany, Belgium, Denmark and Slovakia.

  The new draft rejects all of the European Parliament's limiting
  amendments, and is described by FFII as "the most uncompromisingly
  pro-patent text yet".

  Technically, the decision by COREPER on Wednesday is only a "forecast"
  of the final decision, to be confirmed at the Competitiveness Council of
  Ministers on 17-18 May. Until that date, Member states can still change
  their minds (and their votes).

  Support for the text at a political level in some states is still said
  to be quite soft; and decisions brokered in Coreper do fall apart (last
  year's discussions on the Community Patent, for example).

  The Coreper text goes further than the text of the European Commission
  of 2002 in legalising software patents. In 2002 the Commission had
  agreed, in difficult negotiations between DG Internal Market
  (Bolkestein) and DG Informations Societey (Liikanen) not to allow
  program claims. Now it seems that DG Information Society has rolled over
  to the united pressure of Bolkestein and the Council's patent
  administrators.

  A leaked document from Bolkestein's DG Internal Market
  <http://swpat.ffii.org/papers/europarl0309/cec0405/index.en.html>
  suggests that DG Information Society no longer objects to program claims.
  This concession by Liikanen is needed in order to rush the Council working
  group proposal through the ministers' session as an "A item", i.e. a
  consensus point which does not need any discussion by the ministers.

  For next week, the FFII is calling for another net strike and a wave of
  local events and demonstrations <http://kwiki.ffii.org/SwpDemo0405En>.
  Even these days people are demonstrating with banners near the offices
  of the Commission.

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More Background Information
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* The Council proposal documents 8253/04 and 8253/04 ADD from April
  6 are not accessible "due to the sensitive nature of the
  negotiations and the absence of an overriding public interest"
  according to the Council's General Secretariat.

* Letter
  written to the Consilium's General Secretariat, appealing the
  refusal to publish the 6 April documents.
  <http://www.elis.ugent.be/~jmaebe/swpat/council20040423.html#letter>

* We have provided a thorough analysis of the latest Council "compromise".
  The latest version was leaked to us and is accessible through the
  "Annotated Links" section.
  <http://swpat.ffii.org/papers/europarl0309/cons0401/index.en.html>

* A leaked document from the Austrian Ministry of Technology
  exemplifies the decisionmaking behind the Council's proposal.
  Austrian MEPs of all parties had mostly voted in favor of the
  Parliament's amendments. Othmar Karas, head of the Austrian
  People's Party in the EP, had written to the Minister of Technology
  asking him not to support the Council position, but did not receive
  any reply. Instead the ministry left all decisions to its patent office,
  which has always been a 100% follower of the European Patent Office.
  <http://swpat.ffii.org/papers/europarl0309/bmvit0405/index.en.html>

* The Irish Presidency explains on its website that it is sponsored
  by Microsoft. Ireland is "the largest software-exporting country
  in Europe", thanks to a fiscal policy which makes it a tax haven for
  large US companies: it has a tax rate on patent revenues of 0%.
  <http://www.eu2004.ie/sitetools/sponsorship.asp>
  <http://swpat.ffii.org/players/ie/index.en.html>

* More recent news <http://kwiki.ffii.org/SwpatcninoEn>

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About the FFII -- www.ffii.org
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The Foundation for a Free Information Infrastructure (FFII) is a
non-profit association registered in Munich, which is dedicated to the
spread of data processing literacy. FFII supports the development of
public information goods based on copyright, free competition, open
standards. More than 400 members, 1000 companies and 60000 supporters
have entrusted the FFII to act as their voice in public policy questions
in the area of exclusion rights (intellectual property) in data processing.


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Permanent URL of this Press Release
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<http://swpat.ffii.org/news/04/cons0507/index.en.html>