It's a NO! - 648 - 14 (Groklaw)

[Posted July 6, 2005 by cook]

Groklaw covers the European Parliament's rejection of software patents. "Of course, this is not the end. After the vote the EU Commission said it would respect the vote and would not put forth "any new proposed legislation in this area", according to Reuters. There are hints that the next chapter will be an attempt to pass the so-called "Community" patent. Talk about Orwellian-newspeak. Here's the plan: Lawmakers including Kauppi said the rejection of the legislation should give fresh impetus to the creation of a single European system, known as the ``Community'' patent."

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Interesting speech

Posted Jul 6, 2005 21:13 UTC (Wed) by Ross (guest, #4065) [Link] (2 responses)

The user CJG posted a translation of Rocard's Speech before the vote as a
comment in that Groklaw story. I found it very interesting -- it is nice
to see such upfront language and mention of the issues we know were really
in play.

http://www.groklaw.net/comment.php?mode=display&sid=2...

"Thank you Mr. President, Mr. president, dear colleagues, in all likelihood this assembly will within the next two or three minutes reject the directive concerning the patentability of computer-assisted inventions. All our large parliamentary groupings, and even the smaller ones, have made this decision for a variety of contradictory reasons. I have neither a mandate nor the ability to comment on these reasons, but the convergence of the outcome reveals a common underlying meaning. Each block prefers to reject the text rather than acquiesce in the opinions of the other. But above all, there is here a common and near-unanimous anger of this Parliament against the inadmissible manner in which it has been treated by the Commision and the Council [applause]. Contempt, [applause] total and sarcastic contempt for the choices made by this Parliament in the first reading, total absence of consultation on the part of the Commission in the preparation of the text for the second reading, and efforts to squelch even government-to-government debate within the Council itself.

This is in itself a scandal. The current European crisis is largely caused by democratic inadequacy. The council bears a crushing responsibility for this inadequacy, which has been particularly in evidence in the case at hand. Let this rejection serve it as an object lesson[applause]. Insofar as the substance of this debate is concerned, the state of opinion represented here demonstrates that the issue is not ripe for resolution. A deepening of the debate would have been essential to arrive at a consensus. On this difficult but essential subject, with dozens of billions of dollars at stake, a collective rethinking is evidently underway.

In a sense, this rejection should be regarded as a message to the European Patent Office. The European Parliament has refused to ratify the recent administrative extensions of jurisprudence directed at liberalizing the patentability of software. If these extensions should continue, it appears clear that a parliamentary majority will emerge to put a stop to them.

Thank you, dear colleagues."

Limits on the parliaments power

Posted Jul 7, 2005 0:08 UTC (Thu) by walken (subscriber, #7089) [Link] (1 responses)

Prior to the parliaments second reading, the Commission had already threteaned that if the parliament were to reject the directive, they would "respect their wish" and not make any new proposals wrt software patents. Instead, they would continue to claim the current law is "ambiguous" and the EPO would continue their current practice of giving out software patents (which are probably worthless and unenforceable, but this has not been tested in court yet).

Now Rocard is replying that if the EPO were to keep giving out software patents, a parlimentary majority would emerge to stop them. Which leaves me wondering, if the Commission won't initiate any new software-patents directives, what could the parliament do in practice ? From what I've seen, and this is one of the reasons I voted against the european constitution, the parliament does not have the power to propose a directive which would make software patents explicitly illegal, they can only propose amendments to directives that are submitted to them.

The devils advocate in me would propose that if the parliament does not get any new sw-pat directive proposals to amend they could probably start to amend every proposed directive about agriculture and fisheries instead, until the commission gets their point. But that sounds rather far fetched and it would be sinking as low as the commission and council too.

Limits on the parliaments power

Posted Jul 7, 2005 9:41 UTC (Thu) by kleptog (subscriber, #1183) [Link]

The EU constitution treaty was many things but it most definitly gave the parliament *more* power than it does now. Many of the arguments against seemed more along the lines of "it doesn't go far enough". Maybe true, but I think we should take what we can when it is offered.

The parliament are the good guys here. They exerted their power to reject a commission. They voted massivly against the directive here. If they want power they need to exert it. The role of the Senate and House of Reps in Australia as it is currently is not prescribed in the Constitution but got that way by 100 years of active working. If the parliament started a "tradition" of submitting proposals to the commission, it could eventually reach a point where it would be more binding than any treaty.

The current rules bar the parliment from many areas of policy, which is why I voted for. Give them the toehold they need to take the whole foot (or leg).

Not all rules are written down. The ones that aren't are usually stronger than the ones that are.

The real problem

Posted Jul 6, 2005 23:11 UTC (Wed) by Seegras (guest, #20463) [Link] (3 responses)

Rocard points this out quite nicely: It's about democracy, respectively the lack thereof.

The EU is not in any way democratic. It's got a parliament which mostly has a right to veto, but which not really makes the law. Instead, some "commission" of appointed ministers set the agenda and make the laws. These ministers get appointed by the executive of the different countries, effectively giving the national executive legislative power on the EU-level. As it turns out, this is used to shove through laws which would have been rejected on national level. But if its EU-law, the national legislative bodies can't reject it.

This happened with several laws: ENFOPOL, Copyright, genetically modified foods and so on. Each of those would have been rejected (or not even considered) by most national legislative bodies, but took the detour of EU-law.

Another incident was the appointment of the homphobe religious nutcase Rocco Buttiglione as justice commissioner (!) by Barroso. It took quite a stunt by the parliament to make Barroso reconsider.

It's very clear that the EU is ruled by a 25-headed dragon called the EU-commission, and not by any democratic body.

And some people really are amazed that some countries refused to accept the new european constitution which only would have cemented this status quo?

The real problem

Posted Jul 7, 2005 7:53 UTC (Thu) by greve (guest, #8385) [Link] (2 responses)

> And some people really are amazed that some countries refused to accept the new european constitution which only would have cemented this status quo?

The lack of democracy certainly causes a lot of frustration, which has in part been responsible for the outcome of the voting process for the constitution. But although the constitution had many flaws, it also would have given *more* power to the people and *less* power to the 25-headed dragon.

So people in fact voted *for* the 25-headed dragon when they voted *against* the constitution.

The real problem

Posted Jul 7, 2005 9:12 UTC (Thu) by quintesse (guest, #14569) [Link]

Problem is that most people hardly understand this and couldn't forsee any of the possible effects of voting for or against the consitution. And when in doubt and faced with something they don't understand people prefer to stay with a known evil (ok, that's exagerating a bit ;-) than (possibly) an unknown one.

The real problem

Posted Jul 7, 2005 9:39 UTC (Thu) by walken (subscriber, #7089) [Link]

I have to disagree here. Or rather, I would say that even though the failed constitution did include *some* improvements giving more power to the people, none of these seemed significant.

The parliament would have been allowed to participate in the codecision process on a wider variety of topics, but the codecision process itself would have been mostly unmodified, so the parliament would still be unable to propose any directives and the commission and council would still be able to ignore most of the parliament amendments like they did earlier with this software patents directive.

The institutions would not have been modified in any significant way, so we would still have the commission which is not politically responsible to the people, the council which has legislative power at the EU level while it has executive power in the member states, the central bank which is not responsible to anyone, etc.

None of these problems have been solved by voting against the constitution, but a vote for the constitution would have legitimized the current institutions and made more difficult any future reorganizations, IMHO.

It's a NO! - 648 - 14 (Groklaw)

Posted Jul 7, 2005 13:31 UTC (Thu) by leonb (guest, #3054) [Link]

About the constitution again.

Isn't a constitution supposed to be a definitive
text about the mechanisms of legislative
and executive power?

Sure the proposed constitution was offering incremental
improvements hidden in a sea of motivational text.
But a constitution has no vocation to be incremental.

In conclusion, there were good reasons to reject
any constitution that let decision makers think
that they are allowed to overrule the wishes of
a legally elected parliament. That was my reasoning.

I'll be glad to vote yes if presented with a text
that makes sure that all decision makers know that
they are accountable.

- L.