The Register writes that Poland has intervened again to stop the Council of Agriculture and Fisheries from rubber-stamping the EU directive on computer implemented inventions. Late last week the controversial legislation, better known as the software patent directive, was reported to be an A-List item on the agenda of the Council of Agriculture and Fisheries. This would have seen it voted through to its second reading. Polish under-secretary from the ministry for science and IT, Wlodzimierz Marcinski, first made his opposition to the directive known last year. He said:

"Poland is determined to opt for unambiguous expression in the law of the European Union on issues connected with the patentability of computer-implemented inventions, which at the same time must ascertain that computer programs are excluded from patentability".
Thanks to the second Polish intervention, the vote has been delayed. Opponents of the proposal say that the JURI committee (responsible for legal affairs) now has a window of opportunity to restart the whole process. JURI is scheduled to meet in Brussels on 2 and 3 February, and Florian Muller of pressure group No Software Patents, says there is a good chance that the committee would vote to restart.

Will the whole proposal just go pop?
The IPKat can't understand why this proposal is still before the Council of Agriculture and Fisheries, rather than a body with more suitable experties.


  1. Dear IPKAt.
    It is very simple answer why the proposal od the Directive about CII was pushed twice as an A-item before Council of Agriculture and Fisheries. It is called lobbying based on a big amount of money. If You are a big player You are able to hire a good lawyer very skilled with EU procedural law. Then you may use all available tricks to push the law You need to be in force.
    Sorry for so simple explanation.

    Have a nice day Dear Cat

  2. The reason the Directive keeps coming back to the Fisheries Council is that the fisheries ministers are not intended to discuss the proposal, merely to vote it through. (Otherwise the vote would have to wait for the next Competitiveness Council, in March).

    Normally this doesn't matter, because usually the adoption of a "Common Position" by a Council is not controversial, once "Political Agreement" has been reached.

    The EU Council of Ministers procedure is that the text is first negotiated and drafted by a working group of national civil servants. Then once agreement looks possible, it is put before the relevant ministers for any final sticking points to be negotiated out, until a qualified majority can be found for a "Political Agreement" (usually in English).

    Then finally this text is translated into all the EU languages, a few infelicities in the wording are corrected, and the whole thing is ready to be adopted as a "Common Position". Since there should be no more political points to be negotiated, the Common Position could almost be ratified by post: getting the fisheries ministers to rubber stamp it is pretty much the next best thing.

    But the software patents directive shows how the process can go unpleasantly wrong.

    Firstly, ministers have come to realise that they are rather less happy, compared to the civil servants from the ministries responsible for patents who did most of the negotiation, with frankly nebulous protections against patents on pure software.

    And secondly there is a sense that the Political Agreement was tricked out of more skeptical countries by a last minute amendment presented in a foreign language with only fifteen minutes for consideration, which appeared to promise more than on cold reflection it actually delivers.

    So now we have the case where the parliaments or governments in no fewer than ten countries - Spain, Italy, Belgium, Austria, Poland, Latvia, Netherlands, Hungary, France and Germany - have all announced themselves unsatisfied with the Political Agreement text.

    But those in favour of broader software patentability are demanding that the Political Agreement must not be re-opened, or the whole sorry culture of last-minute minute ambush amendments in euro-decision making might fall apart. (Regardless of whether or not sanity would suggest that this whole culture of "Ha. Fooled you. Can't change your mind now" is simply no way to run a grown-up government).

    So that is why they are very keen to keep the dossier /away/ from Competitiveness ministers, and why they are trying to get it rubber-stamped by just about anyone else instead.

    * * *

    Interestingly, in 2001 the UK Select Committee on EU Legislation suggested that there should be a 15 day cooling-off period for national parliaments to examine Political Agreements in their own languages (paras 44-46), which would have gone to the heart of this problem.

    UKRep objected that "this would dramatically affect the process of negotiation".

    At which the committee responded yes, that is /exactly/ what it thought should happen: "However, we do in fact wish to 'fundamentally change the decision-making process' in so far as we seek to prevent last-minute redrafting which makes major changes, leaves no time for scrutiny and potentially gives rise to ill-drafted and ill-considered legislation".

    If a 15 day cooling off period is reasonable for timeshare salesmen, then surely it's even more reasonable for last-minute legal texts proposed at EU Council meetings.

    And if as a result there really had been genuine considered agreement for the "Political Agreement", then there wouldn't be the difficulty now over adopting it as a "Common Position".

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