Saturday, September 01, 2007

An Introduction to the Controversy Concerning Software Patents in Europe

A study about software patents in Europe

According to Michel Callon :
Controversy is all the manifestations by which the representative of the spokesman is questioned, discussed, negotiated, rejected and so forth.

What we have today is a controversy of the patent system in Europe that “has it all”. At this “Introduction to the Controversy Concerning Software Patents in Europe”, there will be a short presentation of the efforts of the European Commission to the adoption of software patents (or else “computer - implemented inventions”) in Europe, the lobbying about software patents (the official term for “lobbying” in EU is “consulting”, so we will use this term in this article), the action of FFII (Foundation for a Free Information Infrastructure) the mobilisations of citizens and small enterprises against this procedure, the final rejection of the Directive by the European
Parliament (which also lead to the enforcement of the political role of the European Parliament).

In this controversy, the main question posed is whether or not Europe will adopt the patents system of the USA (see section 3.1.9 on page 40 for this debate). An adoption of software patents will effect:
• Communication .
• Economy.
• Research.
• Innovation .
• Politics and Ethics.

This whole debate is stressed under a great fact, and a great potentiality given by technology today:

• The success of Free - Open Source Software, (see section 1.3 on page 15).
• The potentiality to exchange immaterial goods (such as software, muic, literature, movies etc) at no cost, between people who don’t know other (ex.Emule), or by the development of weak networks4 .

At this essay, a rather spherical presentation of the parameters of this modern, multidimensional controversy is attempted.

We can divide the debate in software patents in Europe in two periods: the first before 2005, when the Commission’s Directive on computer -implemented inventions was rejected by the European Parliament, and the second after 2005, where, at least formally, the question of software patents
is considered to be closed.

Meanwhile, the opponents of software patents, like FFII (see section 2.6 at 22), call to attention, as according to them, the Commission’s proposal for a unified European Patent Court (almost as in USA), whill pose a “de facto” recognition of software patents, that anyway European Patent Office illegally provides.

More explicitly, at the first section a general - introductory description of the concept of patents will take place. When talking about intellectual property in software there is often a confusion between “copyright” and “patents”. A clarification attempt is made. Because this controversy demands that we should return “back to the basics”, the BULLETIN DE L’ASSEMBLEE NATIONALE du Samedi 1er Janvier 1791 is displayed in French - like the prototype. This document of the French revolution conserning “useful patents” is presented in order to show the arguments of that time, some of which could be helpful in the current debate.

At the second section of some of the main actors and key-personalities of this European controversy are presented. A further study of the position and action of these actors would be interesting. A starting point is set at this section. European Patent Office - EPO (which is the centre of legalisation of software patents in Europe), Software Companies (which on the
one hand use their patent portfolio against their competitors, and on the other hand are conciliatory in order to approach the “free software world”), Foundation for a Free Information Infrastructure (which has already taken a series of initiatives - mobilisations, as well as institutional interventions-refers to the public, provides information for non-so-public procedures cocerning patents) and of course European Commission, the main actor in the
political level, and European Parliament, the most democratic EU’s institution, which finally rejected software patents directive in 2005.

At the third section we focus on the controversy between the last two actors, European Commission and European Parliament. A chronicle of the main public statements of these actors on the examined issue is attempted. Especially in the first period, one could claim that European Commission had the complete free hand. Facts as the first moves of the Commission, the use of the unauthorised software licensing by the EPO as an argument for the implementation of software patents (Green Paper 1997, Follow-up 1999) are displayed. Citation of quotations is widely used in order to provide the chance for the reader to observe this controversy in the way it was jelled in the public documents. Bold letters which are not in the prototype are used for emphasis, in order to facilitate the reader. A refer to the two public calls for consultation by the E.C. is realised. As a parenthesis there is a reference to the withdrawal of Denmark’s support to the agreement of the European Council to E.C. directive, after a national parliament’s decision (a decision based on FFII arguments, see section 3.1.12 on page 43 ). Afterwards the
European Parliament’s positions concerning software patents is displayed.

The main decisions of E.C. concerning software patents were 1) the essential amendments on the directive in 2003 and 2) its complete rejection in 2005.The references on “who voted what” are furnished, but a further analysis is not attempted by the present article. We have to note that it was the first time that European Parliament rejected a Commission directive, which is a
multi dimensional fact.

At the forth section an analytical presentation of the amendments done by the European Parliament during the First Reading procedure is displayed.Despite the fact that there is not much of a legal importance (since the rejection of 2005), the study of the amendments is interesting for those who’d like to take a closer look of the arguments used in this controversy.
The Commission Proposition and the Parliament Resolution are displayed in an easy to read manner.

At the last section some conclusion remarks are displayed.

Finally, I would like to thank all the anonymous and eponymous contributors of the site of the FFII, which has been a precious source of references for this study.

The study is available here (80 pages,pdf, Copyleft).