EU Democracy Undermined by Council
The EU Council of Ministers is showing that the EU is only a democracy in the books. Just yesterday (5th May), the Irish Presidency managed to secure a qualified majority for its so-called "compromise" for the software patents directive, with only a few countries -including Belgium and Germany- offering resistance. This is a "compromise" without a single substantial amendment from the Parliament, with all bad points from the Commission proposal and then some. In a remarkable sign of unity, European Parliamentarians from all political sides are condemning this blatant disrespect for democracy in Europe.
The European Parliament demonstrated in its plenary vote of 24 September 2003 that the European people and SME's do not want software patents. The Irish Presidency is now pushing the Council to support a counterproposal written by those same patent officials whose practice the European Parliament criticised. This same Presidency openly admits on its website that it is sponsored by Microsoft. Additionally, Ireland is "the largest software-exporting country in Europe", thanks to a fiscal policy which makes it a tax haven for large US companies: it has a tax rate on patent revenues of 0%. And this all happens roughly a month before the people of Europe are expected to elect new representatives for the same European Parliament that is currently being ignored.
< common part >
The Parliamentarians are supporting the real economic majority in Europe: !SMEs account for e.g. 80% of IT jobs in Germany and 60% in Belgium. The Commission and the Council on the other hand are backing the European Patent Office, which is a patent-financed organisation outside the European Union. Its decisions are taken by a group of ministerial patent officials from national governments, in close consultation with a "Standing Advisory Committee" consisting of patent lawyers from large corporations, such as IBM, Microsoft, Siemens, Nokia etc.
All is not yet lost however, as this majority was secured in COREPER (committee of permanent representatives). The final vote will happen during the presidency's summit on May 17-18. FFII therefore calls upon all concerned business owners, scientists, economists, politicians and citizens to contact their national governments and urge them to vote against the version proposed by the Presidency. They still have the power to prevent this fallacy from becoming a fact. Actions (public discussions, demonstrations) have been announced in Lund (Sweden), Copenhague, Brussels, Berlin, Warsaw, Bratislava, Prague, Munich, Linz, Vienna, Szeged (Hungary) and Lisbon.
Begin of Hartmut's version of the intro
MEPs and Software Creators Protest against Undermining of EU Democracy by Unelected Legislators
(This is a disparate collection of copy&pastable chunks, not necessarily all in the initial paragraphs)
On 24th of September 2003 the European Parliament voted to clearly confirm the non-patentability of "computer-implemented" algorithms and business methods, thereby implicitely negating the validity of approximately 30000 patents which the European Patent Office has been granting against the letter and spirit of the written law.
The Irish Presidency is now pushing the EU Council to support a counter-proposal written by those same patent officials whose practice the European Parliament negated. In a remarkable sign of unity, European Parliamentarians from all political parties are condemning this blatant disrespect for democracy in Europe.
Just yesterday (5th May), the Irish Presidency managed to secure a qualified majority for its so-called compromise, with only a few countries -including Belgium and Germany- showing some resistance. The "compromise" unites all the most radical pro-patent positions that have ever been seen, including program claims (Art 5(2)) and an explicit negation of any effective interoperability exemption (Recital 17). Apparently Commissioner Erkii Liikanen's DG Information Society, which had successfully prevented program claims in the Commission's proposal of February 2002, has also agreed with this extreme pro-patent position. Thanks to Liikanen's concession, it has now become possible to pass the paper as an "A item", i.e. without discussion at the ministerial level, during the presidency's summit on May 17-18.
The Irish presidency is "sponsored by Microsoft", as its website says.
Ireland is "the largest software-exporting country in Europe", thanks to a fiscal policy which makes it a tax haven for large US companies, with a tax rate on patent revenues at 0%.
The European Patent Office is a patent-financed organisation outside the European Union, whose decisions are taken by a group of ministerial patent officials from national governments, in close consultation with a "Standing Advisory Committee" consisting of patent lawyers from large corporations, such as IBM, Microsoft, Siemens, Nokia etc.
End of Hartmut's version of the intro
Common part:
Bent Hindrup Andersen: Evasion of Democracy by Council Shocking
Bent Hindrup Andersen MEP of the Danish June Movement and the EDD Group draws attention to the lack of democracy in the EU, which is exemplified by the Commission's and Council's behaviour:
- The approach of the Commission and Council in this directive is shocking. They are making full use of all the possibilities of evading democracy that the current Community Law provides. First they ignored 94% of the participants of their own consultation, without given any justification apart from the claim that the remaining 6% represented the "economic majority". Now they are completely disregarding the vote of the European Parliament, and by the way also of the Economic and Social Committee and of the Committee of Regions. They are doing this because they are used to succeed by doing this. The EU is constructed this way. It makes unaccountable bureaucrats the masters of legislation. The problem is compounded by the complete lack of democratic checks and balances in the European patent system. EU and Patents combine into a particularly toxic mixture. Europe's citizens urgently need to take up this issue and learn the lessons before it is too late. They should in particular not allow this kind of structure to be perpetuated by a European Constitution this year.
Johanna Boogerd-Quaak: Irish Presidency Protecting US Companies from European Competition
Johanna Boogerd-Quaak, a Dutch member of the European Liberal, Democrat and Reform Party, indicates that Ireland seems to be playing lapdog for the US:
- I'm under the impression that the Irish Presidency has buckled under the interests of American Companies. Those big American Companies will profit from software patents, but it is a very bad deal for innovation in European SMEs. Additionally, this way of working is a violation of the Parliament. As such, we must make sure that after the elections there will again be a majority in the European Parliament that is willing to show its teeth.
Daniel Cohn-Bendit: Council Protects Interests Patent Establishment
Daniel Cohn-Bendit, chairman of the Greens/EFA Group, explains:
- The Council working party has so far completely failed to address the problems which the European Parliament's Cultural and Industrial Affairs committees tried to solve. They behave in the same way as the Legal Affairs Committee behaved last year, and we can expect that they will fail in the same way. It is clear that the national patent officials in the Council do not want "harmonisation" or "clarification". They merely want to secure the interests of the patent establishment. If they don't get what they want, they simply bury the directive project and try to find other ways to get around the existing law, whose clarity is so painful to them.
Pernille Frahm: Commission and Council failed to do their homework
Pernille Frahm, Danish member and Vice-Chairwoman of the GUE/NGL group, finds that the European Commission and Council are abusing their functions and failing to play their role in EU legislation:
- The patent officials in the Commission and Council are abusing the legislative process of the EU. Their convoluted and misleading Patent Newspeak, negotiated in intransparent backroom dealings, is an insult to the European Parliament, the European Economic and Social Committee, the Committee of Regions and the innumerable experts and concerned citizens who have engaged in serious investigations on this directive project with us. It is unacceptable that the Council is throwing away all their hard work without any substantial justification whatsoever.
Piia-Noora Kauppi: Council Ignores Elected Representatives
Piia-Noora Kauppi, Finnish MEP of the European People's Party, expresses disappointment at the Council Working Party's contempt for parliamentary democracy:
- As the Council is trying to look for a compromise with the European Parliament on the proposal for patenting of computer-implemented innovations (software patents), it should base its work on the final decision taken by the plenary session of the Parliament, not on that of the Commission or of the Legal Affairs Committee. Judging from the papers produced so far by the Council's working party, it seems that the Council is not taking the will of Europe's elected legislators into account.
Anne Van Lancker: Parliament Overruled by Patent Office Officials
Anne Van Lancker, a Belgian MEP of the Socialist group, notes that the civil servants who are supposed to abide by this directive are now the ones who can write their own laws:
- The Council not only ignores the European Parliament in this matter, but adds to the insult by going even further than the Commission: in addition to making the usage of patented algorithms and business methods in computer programs an infringement, they also want to forbid their publication in most cases with the addition of so-called "program claims". Given that the current Council proposal was written behind closed doors by patent office officials, this unworldly outcome should not surprise anyone, unfortunately.
Belgian Minister of Foreign Affairs Comments
Although ironical given Belgium's opposition to the Council "compromise", the Belgian Minister of Foreign Affairs, Louis Michel, seems to confirm the impression that national politicians do not hold a high opinion of the Europees Parliament's decisions. Asked by the EU Reporter about what he thinks of rushing legislation through the European Parliament, he answers (box at the bottom right of page 2):
- I was not aware there was a problem. You say that this raises the possibility of bad legislation? I am not sure that much good legislation comes out of the parliament. I will look into this.
Background information
A thorough analysis of the Council "compromise" document can be found at http://swpat.ffii.org/papers/europarl0309/cons0401/index.en.html
The latest Council documents (from 3 May) can be found at http://swpat.ffii.org/papers/europarl0309/cons0401/index.en.html#links
Footnotes (optionally)
http://register.consilium.eu.int/pdf/en/04/st07/st07230.en04.pdf : Council Working Party "compromise" proposal from 29 Januari. We made a full analysis of this document. It is basically the Commission proposal plus virtually unlimited program claims (makes publication of patented technique illegal, instead of only the use).
- The Council proposal documents 8253/04 and 8253/04 ADD from April 6 are not accessible "due to the sensitive nature of the negotiations and the absence of an overriding public interest" according to the Council's General Secretariat.
Letter written to the Consilium's General Secretariat, appealing the refusal to publish the 6 April documents.
In the mean time, some people have been able to get access to those 6 April documents circulated by the Irish Presidency, and they are virtually identical to the document from 29 January produced by the Working Party. An analysis of these documents has been posted by Philippe Aigrain.
We now also obtained a scanned copy. The main difference between the previous version, is that there will be no more assessment of compatibility with the 1991 EU Software Copyright Directive. The reason is probably that they discovered, just like we did, that software patents are in fact incompatible with that directive. A thorough analysis can be found here.
