 Democracy May Not Be So Bad After All |
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Christian Engström |
While I agree with Mr. Batteson that the issue of software patents is far too complex to be handed over to the European Parliament in the manner that it was, I still have to disagree with him when he suggests that the matter should be handled by the patent lawyers instead.
I have just spent an entire day going through the amendments that the European Parliament made to the resolution before adopting it, just to form my own opinion as to whether FFII, the Foundation for a Free Information Infrastructure, really has a leg to stand on when it describes the resolution as a victory for the opponents of software patents. As I am neither a lawyer nor a politician, but merely a programmer and citizen, I wouldn't really have gained much insight by just reading through the resolution as is. Instead, I went through the amendments one by one and checked what the FFII had said on each issue before the vote, and what they said afterwards.
After having gone through this process, I am now prepared to agree with the FFII that the adopted resolution is indeed a victory, and that it is a good thing that it passed, but like I said, it took me a day of reading just to reach this conclusion.
It is quite obvious that it was completely unreasonable to expect the parliament members, who would normally neither be programmers nor patent lawyers, to vote together a consistent legislative proposal in a plenary session lasting less than an hour, squeezed in between a resolution about the situation in Iraq, a proposal on European energy taxation, and a statement on the fisheries agreement with Mauritius. I think that the fact that they nevertheless managed to put together a good resolution does them great credit, and shows that many of them must have realised that this is an issue that deserves to be taken seriously.
But how did it come to this?
Well, this is where I have to disagree with Mr. Batteson's position, and state that I prefer the democratic road, despite all its shortcomings. While it is doubtlessly true that a group of patent lawyers working behind closed doors would have come up with a legislative resolution that was technically much more consistent, it would have been a resolution with radically different contents. Had it not been for the elected Members of the European Parliament, the software patent would have been a fact today --- carefully crafted and flawlessly phrased, no doubt, but with devastating effects for us in the computer industry.
On the issue of what should be patentable, the patent lawyers, and in particular the ones working for the European Patent Office EPO or within the EU bureaucracy, are most definitely parties to the case. Although there are many patent lawyers that are in fact opposed to software patents, as they have reached the conclusion that extending patentability into this domain is not in the public interest, it is unreasonable to demand that an entire profession should succeed in ignoring its own interests in an issue that so directly affects the future prospects of its members, career-wise and financially.
"[I]t would be particularly desirable to reconsider the practice whereby the [European Patent] Office sees fit to obtain payment for the patents it grants", as the parliament dryly remarks in Recital 7 of the adopted resolution.
The original proposal by UK MEP Arlene McCarthy, without the subsequent amendments, would have opened the floodgates for American style software patents, including the infamous Amazon 1-click-patent. What McCarthy tried to do, in conjunction and collusion with the patent lawyers at the EPO and within the Brussels bureaucracy, was quite simply to deceive her colleagues in the parliament. Whenever she has appeared in the media or elsewhere, she has either tried to present the proposal as a technical issue that merely harmonises existing practice, or as a means of limiting the scope of software patents, although she must have been well aware that the real impact of her proposal was something completely different.
Instead of openly discussing the benefits or disadvantages of expanding the scope of patent legislation into new areas, and then leaving the technical design to a group of experts, she and the patent lobby chose to force the European Parliament to draft complex legislation more or less from the hip, in the turmoil of a plenary vote.
The fact that it managed to do so, and do it as well as it actually did, is something that leaves me rather impressed, and makes me quite prepared to give the renewed mandate to democracy.
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Christian Engström, September 2003 christian.engstrom (at) glindra.org The text is public domain. |
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