The battle about Software Patents in Europe seemed as good as lost. The Council of Ministers voted for a directive that basically slapped the European Parliament in the face because they shamelessly put aside a democratic decision taken by the European Parliament. And even though the Parliament still has a second reading where it will have to go trough a lot of trouble to repair the damage done by the Council, it is a serious matter that the Council of Ministers seems to have no idea how sloppy their directive is. It does allow general, broad softwarepatents, practically without restrictions even though several explanations by the Ministers say they don’t.
They have now shown (twice in one week!) that they have no respect for the democratic opinion of the European Parliament, which in itself is bad enough.
Seemed as good as lost. But it ain’t over yet. We’ve played our cards (and luck!) quite nicely here in The Netherlands (if I may say so myself) and at this moment the Dutch Parliament is actually considering to revoke the vote Minister Brinkhorst gave at the Council. This has never happened before in the history of the European Union!
Did we miss something?
The ball started rolling because I knew a member of the Dutch Parliament,
Annie Schrijer, who turned out to be vice-chairman of the Committee for Economic affairs in the Dutch Parliament.
After the demonstration on Friday the 14th of May at the Dutch Ministry of Economic Affairs, I talked to some of the representatives of the FFII and vrijschrift.org and I told them I knew Mrs. Schrijer and could be able to contact her. Since we thought it might help, I decided to call her.
She lives just a few kilometers from where I live (which is close even in our little country), so it could happen that I went over to her place the next Saturday and was able to tell her the whole story. Fortunately she had had patent issues in her dossier before, so it didn’t take long for her to understand exactly what was going on. Even though she could not do much herself directly, she told me how I could try to hand over an urgent petition to the Dutch Parliament on Tuesday May 18th, the day the Ministers were to vote in the Council. That always seems to “shake the bed” as she put it.
Well, I could not have imagined how right she was. First of all, we offered the petition to the right persons this time. Previously, we had offered it to the civil servants who wrote the letters on behalf of the Minister that later turned out to contain critical errors…
Of course, these guys were not very interested in “shaking the bed”. They were more interested in getting this over as quickly and quietly as possible.
But, there we were.
Tuesday, the 18th of May. Just 5 geeks disguised as businessmen standing eye to eye with the Commission for Economic Affairs of the Dutch Parliament.
What happens in such a case is that you are allowed to say your thing for about 5 minutes. After that, it’s usually “thanks” and off you go.
This time, there was just a little tiny extra detail. Annie had done her homework and she had noticed that there was an error in the letter the Minister had sent to the Parliament prior to the vote in the Council, explaining that there was “agreement” between the European Parliament and the Council, which had been understood by the Dutch Parliament as saying “don’t worry, everything is arranged and in order”. By that time, it was already clear that the Dutch members of the European Parliament were not exactly speaking about an “agreement”. Oops.
So, we had our hands on a classical case of what’s called “onjuiste informatie” in Dutch: “incorrect information” to the Parliament by a responsible politician. Not uncommonly this results in the forced resignation of that politician.
Clearly this is something the opposition is always interested in.
In the Netherlands, like everywhere else, the opposition has the important task of being the guarding dog of the Parliament. We just needed to wake it up.
So, Annie whispered something into their ears that I was unable to hear. However, we would soon find out the guarding dog had been wakened. What happened was that a letter was sent to the Minister where he was asked to explain the situation. Unfortunately, we don’t have a copy of this letter, but the
answer of the Minister is available on the official website of the Dutch Ministry of Economic Affairs (in Dutch).
(Exercise for the reader: Who actually wrote it?)
Of course, we had some remarks (also in Dutch), co-authored by mr.ir. R.B.Bakels.
For those of you that don’t understand Dutch, the letter, contains just the standard arguments copycatted from the European Commission, but no answer to the question “was there or was there not an agreement between the European Parliament and the Council?”.
The Council’s idea of democracy
What might be interesting at this point is to take a look at the transcriptions of the debate at the Council of Ministers. Especially the last part of the
transcription shows an interesting insight into democracy as practiced by the Council of Ministers. Audio recordings are also available.
Another example of how high the Council and the Commission value democracy is shown by the way Eurocommissioner Bolkestein openly threatened the European Parliament. As Brian Kahin puts it:
“On September 24, the European Parliament passed the Directive on the Patentability of Computer-Implemented Inventions proposed by the European Commission, but not before passing a large number of amendments. Some members of parliament remarked that they had never before endured lobbying as intensive as that preceding the vote. Frits Bolkestein, European Commissioner for Internal Market, warned that failure to adopt the Commission’s version would result in intergovernmental action that bypassed the Parliament. Taking up the challenge to its relevance, the Parliament voted dozens of amendments, producing a Directive that would drastically curtail the reach of software patents.”
It is remarkable that a prominent member of the VVD, the “people’s party for liberty and democracy” that has traditionally enjoyed the support of so many SMEs, seems to leave an important part of his backbenchers standing in the cold in favor of a few big, mostly non-European, multinationals.
Anyway, the answer of the Minister was unsatisfying and therefore the Dutch Commission for Economic Affairs ordered a “spoed-debat” (“emergency debate”) on the matter. They wanted to know if an error was made and also if they would be able to revoke the vote of the Minister, should they want to. The debate was held at Thursday May 3d in The Hague, so once again we traveled to the Dutch Parliament. This time, there were
about 10 of us.
The debate was very interesting to follow from the public bench, where there were also some representatives from the press, the Secretary for Technology Affairs of VNO/NCW (the main Dutch employers organisation) and a representative of Microsoft (a non-European software company). One important note that can be made is that the Minister was not present, because the Secretary of State,
Mrs. Karien van Gennip (Christian Democrates), who was normally responsible for this dossier, had just returned from maternity leave. So, the Secretary of State was the one who had to answer the difficult questions.
First, several speakers for the different fractions in the Parliament were allowed to speak and there was also a guest speaker: Mrs. Johanna Boogerd, from the liberal fraction in the European Parliament who knew exactly what was going on.
Mr. Martijn van Dam (PvdA, Dutch Labour) was very well informed and asked about the “compromise” the Minister was talking about in his letter. He noted that the exclusion of “computer programs as such” from patentability did not exclude “computer programs executed by a computer”. He also was not amused that crucial amendments by the European Parliament were put aside and demanded that the Minister would revoke his vote.
Mrs. Boogerd and Mrs. Francine Giskes (Democrats) noted something strange in the statements of the Minister. He doesn’t want softwarepatents, but complained that the amendments of the Parliament would kill softwarepatents.
Mrs. Arda Gerkens (Socialists), who also spoke on behalf of Mr. Kees Vendrik (Greens), was astonished that the amendments of the European Parliament were simply put aside. She asked some questions about the procedure and what was going to happen.
She also informed the Secretary of State of a document she had received, showing there was no legal problem in revoking the Dutch vote.
The Fajardo Lopez report
The document she was referring to was a preliminary
made by several Spanish experts on European procedural law, under the coordination of Dr. Luis Fajardo Lopez.
This report had been made on request of the FFII and their preliminary conclusion was “The questions seems to be a political matter, not a legal one. There are legal ways to change the position adopted on May the 18th meeting”.
A nice detail to note here was that the Minister and the Ministry of Economic Affairs had only a few days before said the vote of the Minister was “final” and could not be revoked.
Open their heads
Mr. Jos Hessels (Christian Democrats) reminded the Secretary of State about a statement the Minister had made a few days before in a leading Dutch newspaper that he wished he could “open the heads of the members of the Dutch Parliament in order to put some knowledge about the European Union in there”. It seemed the Minister could use some extra knowledge himself, too. The Secretary of State admitted the “harsh words apply to ourselves”.
Further, Mr. Hessels said he didn’t want to know all the details, because it sounded like “abracadabra” to him, but he did feel everybody seemed to agree on the goals that they were trying to reach. Since nobody seemed to have any problems with the version of the European Parliament, he wanted to know what was wrong with it according to the Secretary of State and where the “pain” actually was.
In a way, this was a brilliant question to ask, because there’s nothing wrong with the version of the European Parliament contrary to the version of the Council.
Mrs. Fadime Orgu (liberals) also asked why the amendments of the European Parliament were removed and stated that it was important to put an end to the current practices of the European Patent Office.
Note: the EPO already issued over 30.000 softwarepatents against the letter and the spirit of the current law, of which 75% are in the hands of non-European multinationals. Even staff at the EPO itself
admits that “productivity demands mean the standard of European patents is not what it should be”.
Then, the Secretary of State answered, starting with the error in the letter. It was an obvious error, so she could only say “No, it is not correct, I have to apologise”. Later on she blamed it on an “error in the word processor”. For us, this in itself was a victory we never expected to achieve.
She also had to admit that it was “highly unusual, but possible” to revoke the Dutch vote in the formal vote that had to follow once the translations in all European languages are finished. The Lopez report had shown its value already.
It was agreed that the Secretary of State would figure out when the formal vote would take place. In case it would be to soon for the Parliament to debate about the matter, the Dutch vote would be changed into “abstain”. However, that would be the last resort. It would be preferred that the Secretary of State should try to postpone the meeting.
Our report (in Dutch) about the debate, has been slightly changed after the civil servants of the Minister gave us a telephone call that they were not amused to see their name mentioned in the report complete with an external link to a photograph of them. We kindly apologized and removed their names, happy that at least they were beginning to take us that seriously that they started to read our publications.
As promised, the next day the Secretary of State wrote in a
letter that the formal vote would not take place before September, giving us and other concerned European civilians plenty of time to get the attention of our governments and make them understand that the Council of Ministers has made a serious mistake.
The Secretary of State also promised to write a detailed letter about especially the view of The Netherlands and the Council with respect to the amendments of the European Parliament.
Did you notice that I mentioned that a representative of Microsoft attended the debate?
Somehow, that didn’t even surprise me. It was already clear they had an interest in the Irish Presidency, given the fact that they openly sponsor the Presidency. What was remarkable is that they were the only large company that actually sent a representative to attend the debate in the Dutch Parliament. No Philips, no Siemens, just Microsoft. Apparently they are beginning to become a little concerned about their plans to cash in on their intellectual property portfolio. According to Brian Kahin, they also advised Europe on patent policy and last but not least, they are by many considered the driving force behind the BSA, who seems to have co-authored the directive of the Commission.
A bit of history
Hans Achterhuis, Ph.D., Professor in Systematic Philosophy at the University of Twente, writes in his book “Het rijk van de schaarste” (“empire of scarcity”) about how scarcity could develop in our society. Thomas Hobbes was the first to understand that scarcity is the “Natural condition” of mankind: “therefore if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies.”
Contrary to the system that has been developed to fight scarcity, capitalism, there is the system of the commons, that can only work if there is no scarcity.
As long as anyone that wishes to make use of the common possessions can do so as he pleases, there is no rivalry and therefore no scarcity. In this light it is interesting to consider the system of common grounds that flourished for ages in Europe. Apparently, land was not scarce at that time, which is easy to imagine. If you don’t have a horse or a tractor to work with, you’re not waiting for 10 hectares of labor.
So, the system of commons worked until land became scarce, due to the “enclosure of the commons” by the English landlords that started in the late 15th century. Fed by the upcoming capitalism, the landlords took over the common grounds to turn them into exclusive private possession where they could herd their sheep to produce wool for their factories. The farmers and peasants where transformed into possessionless, dependent workers for these giant factories, all to the benefit of the lucky few. Achterhuis explains:
“At first, the English Kings resisted this appropriation of the commons [by the landlords]. All kinds of acts where passed to stop it. In 1489, Henry VII, prohibited the destruction of all “houses of husbandry” to which at least 20 acres of land belonged, while in 1533 an act was passed that limited the number of sheep on (former) common grounds to 2000. The fact that these acts where constantly renewed, shows that they were ignored. The need the capitalistic system had for possessionless, dependent workers could not be stopped with this kind of legislation.”
How little has been changed in 500 years, since the time my forefather built the farmhouse (1472) where I was born. Replace “landlords” by “multinationals”, “houses of husbandry” by “SMEs”, “English Kings” by “European Parliament” and “workers” by “programmers”. Then it becomes clear how serious this issue really is. A small group of wealthy powerseekers are well on their way to appropriating the last common left: The general free knowledge collected trough centuries of science, handicraft and industry.
The European Patent Office already issued thousands of trivial softwarepatents to mostly non-European multinationals, each of which is like one pole in the enclosure being built up around the common pool of ideas the European Software industry depends on for their businesses. Since the European knowledge workers and owners of small businesses don’t want to end up in the modern version of the factories our forefathers ended up in, it is time for those that are supposed to defend our interests to draw the line and make clear that in Europe there is no place for Software Patents.
Note: This is not meant as a statement against capitalism. To the contrary, I think capitalism is a fine system to regulate the market for all tangible goods that cost money to produce and can thus be considered scarce. I just think that the system of commons, as traditionally used by scientists to share ideas, should not be disregarded so easily just because multinationals want to make money off just a few ideas compared to the giant pool of ideas great scientist like Newton, Galilei and Einstein left us. Since software is nothing more then an idea that can be directly executed on a computer, the system of commons can be successfully applied to both software and ideas equally well, as the rising of Open Source software proves now and the flourishing science has proven long before.
I’m all for using the right tool for the right job, which is why at my work we try to combine the Open Source and proprietary models in one product. We open up that part of the software that enables others to learn from our system, which is a complete working system. They can also develop their own ideas and plug them into the existing product, without having to worry about basic things like for example file I/O. On the other hand, we make use of proprietary plugins to make money, which is adequately protected by good old copyright. We rely on our innovative power to keep ahead of the competition, so that by the time they have figured out how our proprietary plugins work we already have something new to compete with and that’s how it should be in our view.
The letter of the Secretary of State
The detailed letter the Secretary of State promised to send, finally arrived. In this letter, she compares the amendments of the EP with the directive of the Council, basically using the same old arguments. However, it is handy to have them nicely ordered together in one official document for a change.
She once again makes a serious error when she states that “The inventiveness of the invention must be in the technical aspects of the invention. The technical solution to the problem must be inventive”. She makes this error when discussing article 2b, which says:
“Technical contribution means a contribution to the state of the art in a field of technology which is new and not obvious to a person skilled in the art. The technical contribution shall be assessed by consideration of the difference between the state of the art and the scope of the patent claim considered as a whole, which must comprise technical features, irrespective of whether or not these are accompanied by non-technical features.”
The “patent claim considered as a whole” must “comprise technical features”, yes. But this does not mean that the inventiveness must also be in the technical features, which means the statement of the Secretary of State is wrong, plain and simple.
What’s more, a claim like “a computer running a program doing this and that” has technical features (the computer), therefore falls within this definition and can therefore be patented. This effectively opens the way for broad softwarepatents, which everybody fears so much. It is remarkable she made this error, because we explicitly pointed this error out in our reaction to the debate (Dutch) we sent to the Commission of Economic Affairs last week.
The Dutch parliament will make a final decision about the position the Minister will take in September. A debate about this issue will take place at Thursday, the 24th of June, 19:45-20:45 CET. Also see the
official agenda of the Commission for Economic Affairs.
They may also decide to require the European Presidency to open a new voting procedure, which would completely reopen the case for all member states.
The political problem they will have to face comes down to choosing between:
a) agree to a directive that tries to allow some softwarepatents running the serious risk of allowing broad softwarepatents after all with devastating consequences for the European Software industry and especially the SMEs that form the heart of our Software Industry.
b) agree to a directive that in order to be sure to spare the European Software industry has no other option then to disallow all softwarepatents, thereby leaving the mostly non-European multinationals “unprotected”.
For what it’s worth: Over 340.000 European voters that signed the Eurolinux petition urge the European governments, including the Dutch government, to take no chances and choose for protecting the European Software industry. After all, the multinationals have plenty of chance to patent their ideas elsewhere, like for example in the Unites States of America.
What can you do to help?
First of all, if you haven’t signed the petition, please do so at:
http://petition.eurolinux.org. It can really make a difference, as this story proves.
If you are in a position that you can represent a Dutch company or are a Dutch lawyer, please sign the joint statement: http://wiki.vrijschrift.nl/VerklaringBedrijven
If you really want to help, consider contacting the representatives of your country. Remember, all European countries can legally revoke their vote if they want to and they have the power to require the European Presidency to open a new voting procedure, which would completely reopen the case for all member states.
References Mr.ir. R.B. Bakels. Connected to the Centre for Intellectual Property Right of the University of Utrecht. Author of the “JURI 107” report about Softwarepatents for the European Parliament (together with prof. Hugenholtz). He is considered as one of the leading experts on the subject of Softwarepatents in The Netherlands.
 http://www.si.umich.edu/~kahin/mip.html : A very interesting and informative article by Brian Kahin, a visiting professor in the School of Information, Ford School of Public Policy, and Department of Communication Studies, at the University of Michigan. He was formerly Senior Policy Analyst at the White House Office of Science and Technology Policy where he was responsible for the intellectual property and digital economy issues. He warns : “Europe must learn from the mistakes of the US and consider carefully the effect of stifling development before giving the green light to software patents”.
About the Author:
Arend Lammertink holds a Masters degree in Electrical Engineering from the University of Twente. He grew up in the town Markelo, where his parents used to run a restaurant, now run by his brother. Today, he lives in Goor with his family and works as a Software Engineer for dGB Earth Sciences that specializes in quantitative seismic interpretation software and services. Most of his work can be downloaded with source code and used free of charge for non-commercial purposes. dGB is an innovative small company that has recently been nominated for the “Overijssel Innovation Award” and made it until the last three candidates.Arend has the full support of his employer for his actions against Softwarepatents because in the end, they are amongst the ones to pay the bill. Arend can be reached at arend /at/ vrijschrift /dot/ nl.
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