FRIDAY IN FOCUS
Owning logic in Europe
11-02-2005
by
Although the controversial EU directive on software patents seems to have been killed, the debate that it spawned will be with us for some time to come.
Unbeknownst to most people in Europe, the European Union came within inches of passing a new law that would have dealt a devastating blow to small firms and software developers across the continent. At least that's the accusation that many campaigners and Open Source advocates made each time the so-called Computer Implemented Inventions Directive was placed before EU politicians -- a directive that was gunned down in by European Parliament committee this month.
While already protected by copyright, an EU-wide system for patenting software would give big software companies a much more powerful weapon to ward off any firm encroaching on their territory. In other words, software patents would give big firms another tool to crush smaller start-ups, according to those opposed to the directive.
Whether Europe's politicians bought into that argument is somewhat unclear. But they did acknowledge that the directive in its current form is un-passable, and the strength of that view was reflected in a 19-2 vote against the directive within the European Parliament's Legal Affairs Committee, which is seeking to send the legislation back to the drawing board. Unlike several earlier hold-ups in the EU's various legislative bodies, including two delays from Poland on each side of the new year, the vote in the Legal Affairs Committee seems to have snuffed out, for the remainder of this year, any chance that directive will be made into law.
Florian Mueller, manager of the pan-European NoSoftwarePatents.com campaign, said the decision was a "spectacular victory for democracy" and noted that efforts by Ireland's Charlie McCreevy, the EU's Internal Markets Commissioner, to dissuade parliamentarians from killing off the directive came too late. In the days before the directive was knocked down, McCreevy met with Bill Gates, chairman of Microsoft, a staunch supporter of software patents.
For his part, Mueller has admitted that the war is not yet over, and both sides are braced for a second round in 2006 and beyond. Indeed, the big businesses that backed the directive -- such as Philips, Nokia, Alcatel and Microsoft -- have been adamant that patent protection for software is necessary if Europe is to rival US competitiveness. They also say, in somewhat ominous terms, that without patent protection, big companies will be less inclined to spend cash on European R&D projects, because the governments of Europe cannot offer any guarantees that commercially useful technology will be protected. In the US, those much-needed safeguards are in place, patent supporters note.
Indeed, the cheering from the anti-patent crowd has already drowned out comments from the current chair of the EU's Council of Ministers, Nicolas Schmit, deputy foreign minister of Luxembourg, who said the day after the directive was canned that he would push for the council to formally adopt the much-disputed legislation at a 17 February meeting. It is doubtful he will succeed, but Schmit's comments do point to the fact that the pro-software patents lobby has not thrown in the towel, and is not likely to do so any time soon.
That is in part because the whole software patents affair throws into the spotlight a more fundamental -- though not especially-new -- debate about the future of Europe, which for five years has been guided by the Lisbon Agenda, which seeks to make the EU more competitive than the US. Will software development here be led by big business, or will individuals, universities and small firms take the reins, to create a more "democratic" software development model? What's it going to be: Boston or Berlin?
"In the US, they have decided to make it possible to patent software. That's fine for them, but is that the road we want to go down? That's the question we have to ask ourselves," said Georg Greve, the president of the Free Software Foundation, a group that supports non-proprietary software and opposes software patents. "I think you need to look at it this way: allowing a company to patent software -- I mean pure software -- is the same as allowing them to patent logic. Is logic something that can be patented? I don't think so," he said, speaking ahead of a presentation on Free Software at UCD last month.
Greve's arguments reflect a deeper ideology that tends to enjoy more broad support in Europe than in the US: that no firm should be in a position to have total ownership over a given piece of software. Moreover, anyone should have the right to modify any software and redistribute that modified code without fear of violating a patent or copyright. Free Software and Open Source advocates also say that software patents could impede on this flourishing movement, which has already given birth to Linux, the main rival to US-based Microsoft and its Windows operating system.
Few on either side of the argument have stood up to say that the software patents debate boils down to something as simple as "European social democracy vs. American capitalism," but everyone has hinted at it. Since there seems to be no compromise -- the EU either allows software patents or it doesn't -- then anyone concerned with the matter must join one side or the other. If you did not take sides this last time around, don't worry, the bloodiest battles are still ahead.
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