By Jennifer L. Schenker/IHT IHT
Wednesday, July 07, 2004
SourcePARIS The adoption of a European Union law on software patents could be in doubt after accusations of missteps and mishaps during a May 18 meeting of the EU Competitiveness Council in Brussels.
Officials in a number of European countries say that votes cast by ministers during the meeting to hammer out political differences did not reflect the position of their governments.
Among the accusations: that the Dutch minister misinformed his national Parliament about the directive’s status; that a stand-in for the Danish minister was coerced into a ‘‘yes’’ vote; that the German minister accepted last-minute changes to amendments made by his own country that were contrary to the wishes of the government; and that the Polish government, which originally abstained, was not asked for its opinion when the final agreement was recorded.
The political storm, which has spread to national parliaments in Germany and Denmark and provoked questions about the EU directive in Poland and Portugal, is the latest twist in a bitter fight between large corporations with significant research investments and scores of patents and small and midsize software companies, academic institutions and supporters of ‘‘open source’’ software, who oppose software patents.
Open-source software is typically developed by programmers who volunteer their time, is commercially unlicensed and is distributed without charge on the Internet. Opponents of software patents want to make sure software code cannot be patented at all, allowing developers to create programs without fear of lawsuits or license fees.
Business generally wants software to be patentable across the EU, the way it is under U.S. and Japanese law, in order to preserve their right to collect royalties and protect work they have invested in.
Both camps say the consequences for Europe will be dire if the other side wins.
In what could be an unprecedented move, the Dutch Parliament last week asked to change the ‘‘yes’’ vote that it cast at the May meeting to support making software patentable throughout the European Union. Motions have been introduced in parliaments in other countries, including Germany, to consider a change in their own votes.
The hope of some opponents of patents on software is that this will provoke a new vote by the entire Competitiveness Council — an economics advisory group that is part of the EU Council of Ministers — and reverse the outcome, making software ineligible for patents. The council can make binding decisions, provided it is not blocked by the European Parliament.
‘‘There were a lot of abstentions already, so we think if we can show that Holland has changed its vote, it might have a domino effect,’’ said Arda Gerkens, a representative of the Socialist Party in the Dutch Parliament who helped spearhead the move to have the Netherlands change its vote.
In September, the European Parliament introduced amendments to a proposed directive on harmonizing patent law across the EU. That version, which opposed software patents, was tentatively passed on a first reading. But further amendments were made by the Council of Ministers and were presented as a ‘‘political compromise’’ when they actually would legalize software patents, opponents of software patents say.
The directive, with the council’s amendments agreed to in May, goes back to the European Parliament for a second vote in the fall, which if approved would be binding on member governments.
The Foundation for a Free Information Infrastructure, a nonprofit association in Munich that says it represents 3,000 companies opposed to patenting software in Europe, accuses the Coun cil of Ministers of not taking national governments’ opposition to software patents into account, and thus contends the vote in May approving software patents is invalid.
The foundation’s president, Hartmut Pilch, argues that the council said its amendments incorporated the European Parliament’s work when they did not, that it misrepresented the real thrust of the directive to national parliaments and that it falsely claimed that the current version of the directive is favorable to small and midsize companies.
Some large companies say the directive should stand as is, claiming that it does not hurt small and midsize companies but would hurt Europe as a whole.
‘‘We support this new EU directive as proposed by the Competitiveness Council, and we hope it will be approved by the European Parliament,’’ said Ruud Peters, chief of Philips’s intellectual property and standards division.
Further changes, he said, ‘‘would have major implications for all innovative companies in Europe, and for the European economy in general, and will lead to the loss of thousands of high-quality jobs in R&D in Europe.’’
If the new directive does not go through as it is, ‘‘we prefer to have no directive at all,’’ Peters said.
The Foundation for a Free Information Infrastructure argues that the directive should not be allowed to stand as is because of the voting miscues.
Gerkens, the member of the Dutch Parliament, said the Netherlands economics affairs minister, Laurens Jan Brinkhorst, led the Parliament to believe that the directive with the European Parliament amendments was being rubber-stamped by the Council of Ministers.
Gerkens’s bid to have the Dutch vote changed to a ‘‘no’’ did not pass last week. But another resolution calling for the vote to be neutral rather than a ‘‘yes’’ did pass.
Even now, though, the interpretation of what the Dutch government is going to do depends on whom one talks to.
Gerkens said the Parliament instructed the Netherlands’ state secretary to send a letter to the Council of Ministers informing it that the country had changed its vote. The Netherlands took over the presidency of the EU on July 1.
But a Dutch government spokesman said that was not how Brinkhorst had in terpreted the Dutch Parliament’s move.
‘‘Mr. Brinkhorst doesn’t feel obligated to change the vote from a ‘yes’ to an abstention in order to take into account the concerns expressed by the Dutch Parliament,’’ said Joop Nijssen, a spokesman for the Dutch EU mission in Brussels who spoke on behalf of the minister.
He said the minister planned to ask the European Parliament to take the Dutch Parliament’s concerns into consideration when the directive comes up for a final vote.
If the Competitiveness Council affirms its May 18 political agreement, the amended directive that does effectively call for software patents will go back to the European Parliament for a second reading.
In November, the chief executives of Nokia, Philips, Siemens, Ericsson and Alcatel warned the EU that ¤15 billion, or $18.5 billion, of their combined annual research and development spending could be wasted if software is freed from patenting.
Opponents say software patents will kill innovation and wipe out many of Europe’s small and midsize companies.
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