Request to the EU Council of Ministers to publish documents 8253/04 and 8253/04 ADD 1

What is this about?

On 23 April 2004, I received a reply indicating that

The General Secretariat has weighed your interest in being informed of progress in this area against the general interest that progress be made in an area that is still the subject of negotiations.

It considers that at this stage disclosure of these documents which give details of progress made would be premature in that it could impede the proper conduct of the negotiations and compromise the conclusion of an agreement on this sensitive subject. As there is no evidence suggesting an overriding public interest to warrant disclosure of the documents in question, the General Secretariat has concluded that protection of the decision-making process outweighs the public interest in disclosure. Accordingly, pursuant to Article 4(3) of the Regulation (protection of the CouncilŐs decision-making process), the General Secretariat is unable to accede to your request for access.

Under Article 7(2) of the Regulation, you have 15 working days to submit a confirmatory application asking the Council to review its position.

Request for access to documents 8253/04 and 8253/04 ADD 1

Additionally, two conferences were held in the European Parliament: before the demonstration there was a press conference, where both MEPs (who are the democratically elected representatives of the public) and SME owners lamented the closed nature of the Council negotiations and the fact that its working group seems to completely disregard all substantial issues raised by the European Parliament in its Plenary session of 24th September:

• The original Commission/Council proposal did not prevent pure software patents in any way (even though the Commission claims otherwise, but it has never substantiated this point), which the European Parliament rectified by its amendments to articles 2 and 3.
  
  
• The original Commission/Council proposal did not guarantee interoperability in any way (they only guaranteed the right to reverse engineer, but that is an empty safeguard as this right simply cannot be taken away by patents), so the Parliament introduced article 6a.
  
  
• Additionally, the Parliament explicitly insisted on keeping the publication of patented techniques legal, which the Council working party now proposes to make a criminal offence in case it is a software technique (because of the recently approved IPR-enforcement directive, which as voted applies to any kind of intellectual property, including patents). This issue concerns article 5.

Apart from the representative of the European Commission and the representative of the European Patent Office (whom we thank sincerely for their participation and for presenting their views, in stark contrast to what's happening in the Council at this time), all were very concerned because of the way the Council is flat out ignoring the voice of the official representatives of the European public interest, namely the European Parliament.

In my view, the strongest arguments indicating the fundamental public interest issues connected to this dossier are:

• The Federal Trade Commission published a study on the US patent system in October 2003. This study revealed serious problems caused by software patents, because of the different nature of software compared to the traditional manufacturing industries where patents are normally applicable. They are now even trying to patch up their patent reviewing process to make up for the deficiencies resulting from the fact that the patent system was never designed to cope with advances in logics, mathematics and other abstract reasoning. Do we really want to this to our European companies, while they are still trying to get it right in the US?
  
  
• The Council working party wants to introduce so-called program claims, which would make publication of a program containing a patented technique an infringement, and possibly even a criminal offence under the IPR-enforcement directive. This goes entirely against the Berne and TRIPs conventions and the EU Software Copyright Directive from 1991, which all state, confirm and reconfirm that software must be protected as a literary work and that any additional protections must be without prejudice to the original author.
  
  
• Interoperability is the cornerstone of the entire computer industry. Without it, we would for example have no Internet (since to be on the Internet, all connected systems have to be able to interoperate). The recent Microsoft anti-trust trial has shown that the anti-trust law is no substitute for proper ground rules which prevent monopoly abuse from the start, as it has taken years to complete and may take still several years more if Microsoft appeals. An SME which is hampered by a monopoly and which has to wait for a ruling like that, has gone bankrupt ten times by the time the final verdict falls.
  
  
• The European Patent Office has already granted over 30,000 software patents in EU until now, of which 75% are in hands of US and Japanese companies. As Mr Reinier Bakels (Centre for Intellectual Property Law, University of Utrecht, The Netherlands) said at the aforementioned conference: "This directive is not about software patents for Europeans, but about software patents in Europe". Legalising said patents would provide foreign companies with a huge leverage against most of our flourishing European ICT companies, many of which are small and have no patents to use as bargaining tokens.
  
  
• Apart from SME's, economists and scientists, a very large group of informatics-literate members of the public concerned about the legalisation of software patents, are the Open Source and Free Software movements. The popular Linux kernel (originally created in Finland) is probably the best known offspring of these movements, but other projects such as the Apache webserver (driving almost 70% of webservers on the Internet) are quite important as well, both economically and culturally.

  Software patents are inherently incompatible with their type of software distribution, as everyone is free to copy their source code (which means there is no central distributor which can perform the necessary accounting to collect patent royalties). They even replace one of the goals of software patents to some extent, given that in this model the dissemination of knowledge happens automatically without requiring the negative effects of state-mandated monopolies in exchange for such a service.

On the contrary, keeping this dossier shrouded in mists only reinforces the view of many that the Council sits in its Ivory Tower and does not care about what the public or its directly elected representatives think. I am therefore strongly convinced that publishing the current state of affairs is in the best interest of all involved parties. I also hope you can do this before the Council meeting of 17th May.

Sincerely yours,