hydrarchist writes "Glyn Moody is also the author of a very good book about the history of the free software movement"Rebel Code..

Second sight

Glynn Moody

Thursday March 10, 2005


The Guardian

If you think computer patent law is boring, think again. Over the
past year, factions for and against the patenting of programs
have fought a battle for the soul of European software, and the
ramifications of a recent EU decision on the subject are likely
to be huge - and not just for anoraks.

Things began quietly in 2002, when the European Commission's
Directorate for the Internal Market submitted a proposal
regarding the patentability of "computer-implemented inventions".
In September 2003, the European Parliament added amendments that
made clear that programming code and business methods could not
be patented - a view widely held in Europe, if not in
patent-happy America where they can be given for quite mundane or
obvious concepts - as if you could patent the idea of a verb of
motion in an English sentence. It would turn the life of a
programmer into a nightmare.

But last May, for no apparent reason, the clarifications were
discarded, and a text close to the original draft that did allow
US-style software and business method patents was pushed through
by Ireland, which held the presidency of the European Council.
The software patent proposal finally turned up on a Fishery
Meeting agenda in December as what is known as an "A" item:
something that would be adopted without a discussion or a vote.

Poland's science minister raced to the meeting to request that
the item be removed from the agenda. Poland did this twice, but
these were simply postponements of the vote, not a restart to the
whole patent legislation process.

Meanwhile, the backlash against the European Commission's
attempts to steamroller this legislation through had been
growing. At the beginning of the year, German, Spanish and Dutch
politicians formally called on their respective governments not
to support the proposed text. The Legal Affairs Committee of the
European Parliament asked for a restart of the legislative
process, as did the European Parliament itself.

Against this background, Monday's meeting of the EU Council,
where the software patent directive was again an "A" item, was a
critical one. Denmark requested that the matter become a "B"
item, which would allow more discussions, a move supported by
several others. But the country currently holding the presidency,
Luxembourg, flatly refused - "for institutional reasons"; the
item remained on the "A" list, and the "common position" was
adopted, despite the manifest lack of unanimity.

This is a major victory for the pro-software patent lobby, but it
is by no means the end of the story. The directive now goes back
to the European parliament, which has the option of modifying it
- theoretically, at least, since an absolute majority is required
to do so, irrespective of abstentions and absences, and MEPs are
not known for their rigorous attendance levels.

But this time, things may be different. The European Commission
has gone out of its way to thwart the European parliament,
disregarding the wishes of various elected bodies by its
insistence that bureaucracy trumps democracy, and that fiats beat
votes. A time was bound to come when there would be a power
struggle over who really runs Europe: the commission or
parliament.

Maybe an apparently obscure battle over software patents will not
only go down in computing history, but also be counted as a
decisive moment in shaping the 21st century's political
landscape, too.

· If you'd like to comment on any aspect of Online, send your
emails to online.feedback@guardian.co.uk. Please include your
address and telephone number. If you do not want your email
address published, please say so."