One that got away

So many topics are dealt with by the EU these days that keeping up with what is happening is a nightmare – hence the whole purpose of this Blog.

Occasionally, however, even we miss something (in fact, we miss an awful lot) – and one of those things we have not given any attention to is the EU's "software patent", which has been approved today by the Council of Ministers amid enormous controversy.

Despite that, the subject is definitely, as far as this Blog is concerned, one that got away. To an extent, the official title of the "Computer Implemented Inventions Directive" might explain why we missed it. The name itself is a masterpiece of obscurity and of such leaden complexity that any sane person would be inclined to give it a miss and hope its goes away.

But "go away" it did not. It was introduced by the Commission in February 2002, in one of its "COM final" documents – COM(2002) 92 final - as yet another of those obscure, boring Single Market measures that you ignore at your peril.

It history, however, stemmed from a 1997 Green Paper on the "Community Patent and the Patent System in Europe", and the "patentability" of computer-implemented inventions was one of the priority issues identified in early 1999 on which the EU commission should take action, with a view to harmonising member states' law on the issue.

By 1999, there has been intense debate in the software community on the issue and some sections of the European industry, according to the commission, "asked for swift action to remove the [then] current ambiguity and legal uncertainty surrounding the patentability of computer-implemented inventions."

On the other hand, developers and users of "open source software" and a substantial number of small and medium-sized enterprises backing them started raising serious concerns about software patents, fearing that it would restrict the development of what amounted to a major "cottage industry". The "antis" argued that copyright gave more than adequate protection, while patents would be a bonanza for lawyers and enable corporations to hamper the development of an essential technology, all for the sake of maximising their incomes.

So the scene was set for confrontation yet, despite the fears of the "developer community" and its allies, the commission decided to act.

Its rationale was that software development had shown steady growth, it had had a major impact on the whole of European industry and provided a substantial contribution to the GDP and employment. In 1998, the value of the packaged software market in Europe was €39 billion.

The commission's specific concern was that software was becoming increasingly difficult and expensive to develop while, at the same time, it could easily be copied. Thus, it argued, as patents play an important role in ensuring the protection of technical inventions in general, this could be applied on a European level to protect software, providing an incentive to invest the necessary time and capital in further development, stimulating employment and wealth creation.

To say that the progress of the directive has been tortuous and controversial is a massive understatement, and some of the history can be followed through this link on ZDNet.co.uk, which catalogues a most amazing tale of skullduggery.

According to ZDNet, the software patents "make a mockery of European ideals", showing "Europe" at its worst. Whole countries opposed it, its proponents couldn't explain it and the EU parliament called for it to be completely reconsidered. Yet, barring an earthquake, it will now be approved.

Says ZDNet, it is "a triumph of bureaucracy over democracy." The affair has highlighted the mandarin mechanisms of Europe at their baleful worst, with the directive being adopted not on its merits but for "institutional reasons" so as not to create a precedent "which might have a consequence of creating future delays in other processes." The website adds:

Nobody who actually writes or cares about software supported this directive, but nobody in a position to stop it cared about software except as a cash cow, or cared about its producers except as ever-ready battery hens to be intensively farmed. The patents organisations want more patents, regardless of quality. The bureaucrats want more centralised control. The elected representatives either don't understand the issues or have been bought by big business.

For those of us who believe in freedom to innovate, this is a sad day. It is even sadder for those who stand by the ideals which gave birth to the modern Europe, and believe that our institutions act on our behalf against powerful self-interests.

One of the strangest things, however, according to another website is that when the directive was adopted today, the Council of Ministers appears to have been agreed "in violation of the procedural rules and in spite of the evident lack of a qualified majority of member states and the requests of several states to reopen negotiations."

Apparently, Cyprus submitted a written declaration at the start of the Council session and Poland, Denmark, Portugal and others (not specified) asked for a debate. The Luxembourg presidency claimed this was not possible due to procedural reasons, and that this would have undermined the whole process and kept the directive on what is known as the "A-list" which means that it could only be nodded through without discussion.

Nevertheless, the issue is far too complex and detailed to deal with in one posting, but what we have seen means that it has been promoted to our watch list. And the story is far from over. We will be re-visiting it soon.