[ Software Patents Directive Story ]

Whereas the development of the digital industry raised the issue of software legal protection, it did not take much time for most of national lawmakers to agree on the fact that due to software original nature, ie. a set of instructions presented just as a musical partition, copyright was the most appropriate.

In that regard, the 1995 agreement on Trade related aspects of Intellectual property rights (TRiPS) contains an article 10.1 specifying that computer programs shall be protected as literary works in the sense of the 1886 Berne Convention. To avoid any confusion, the 1973 Munich Convention on European Patent meanwhile expressly excludes software from patentability in its article 52.

For quite obscure reasons though, the European Patent Office (EPO) started from its very launching to bypass the law and deliver software patents under various category names. Not that obscure actually, once you know that the EPO revenues depends on the number of patents delivered.

The proposed Directive on the Patentability of Computer-Implemented Inventions (CII), also called Software Patents Directive, was an attempt to legalize the EPO Board of Appeal case law. Issued by the European Commission on February 20th 2002, the proposal was supposed to "harmonise national patent laws and practices" on the issue.

With not much surprise, the proposed directive was supported by well established IT corporations benefiting from the delivered patents, but also patent lawyers and "patent trolls", ie. non practicing entities holding patents portfolios.

Due to the threat on innovation and competition, the opponents as for themselves were mostly open source and free software SMEs - software patents causing disproportionate costs of licensing and unavoidable law suits.

Main citizen lobby active on the issue, the Foundation for a Free Information Infrastructure (FFII) played a major coordination role in warning Members of European Parliament (MEPs) about the dangers of the proposal, hardly understandable in itself without explanation.

106 amendments were adopted by the European Parliament in first reading on September 24th 2003. The main idea was to confirm the patentability of machines running the software but exclude what was related to data processing and therefore, software patents.

In other words, the amended version was in total contradiction with the purpose of the initial one, condemning EPO practices instead of approving them.

On May 18th 2004, the Council agreed on what they called a "compromise version".. Quite a surprise for MEPs : with massive lobbying from pro-patents, the Commission had actually simply suppressed all amendments before sending the proposal to the Council, so that the later had to vote on more or less the same proposal as initially. Thanks to the Polish Government though, who announces that it would not support the text issued, the second reading was postponed.

A democratic concern had raised. The balance of power between the Commission and the Council on one side, representing respectively E.U.'s head and member states governments, and the European Parliament on the other side, elected by and standing for the people, was threaten.

While the FFII started claiming "Power to the Parliament, no Software Patent", MEPs slowly split into two camps that overtook on the political groups : those in favor and those against. Several months battle followed with growing indignation about the way the EP first reading amendments had been considered. On March 7th 2005 though, the compromise version was confirmed by the Council and sent to the Parliament for second reading.

Michel Rocard, rapporteur on the directive, issued a very clear report, warning his colleagues against the dangerous wording of the text and tabled amendments. As the European Parliament Committee on Legal Affairs (JURI) did not react positively, a new set of amendments were jointly presented by Michel Rocard, for Socialist Parti, together with Jerzy Buzek and Zuzana Roithova, from EPP-ED (Christian Democrats).

While the plenary vote in Strasbourg was approaching, and proponents multiplying pathetic attempts to obtain MEPs votes, the citizen mobilization reached its paroxysm to gain support for the "Jerzy / Buzek" amendments.

On July 6th, 2005, the proposal was finally rejected by an overwhelming majority of 648 votes vs 14 and Michel Rocard commented :

"There is a collective and unanimous anger on the part of the entire Parliament at the unacceptable way it has been treated by the Commission and the Council. A total and cynical contempt for the choices made by Parliament at first reading. A total absence of any consultation by the Commission in drafting the text for the second reading. Repeated attempts even to stop discussions between Governments within the Council itself. As a matter of principle, this is scandalous enough. The crisis in Europe today has a lot to do with the deficit of democracy, an area where the Council has an overwhelming responsibility, as it has proved amply on this issue. Let us hope that this rejection is a lesson to it ! "

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