1 April 2005 Alain Moscowitz 1

Confederation of European Computer User AssociationsConfédération Européenne des Associations d´Utilisateurs des Technologies de l´Information

www.cecua.org  

Software Law: Latest Developments in Europe

Patentability of Software: towards a EU directive?

1 April 2005 Alain Moscowitz 2

Current situation in the EU Internal Market

• A fact: laws and practices are different following the different EU countries

• Innovation, services and market dynamics:– Lisbon Agenda (conclusions of the Council of EU last 23rd march)– Services (Bolkestein Directive)– Rome Treaty => Rome II ?

• In fact, the debate is over technical law issues. It is mainly a political debate regarding Innovation and Research, the place of the open concurrence and the open market in the EU, sustainable development, growth and employment: “Knowledge and innovation – engines of sustainable growth (EU Council 23 March 2005)

• The research is in fact at the some time: – Public (large collective diffusion)And/or– Private (return on investments)

1 April 2005 Alain Moscowitz 3

Why is it compulsory to get a Patentability of Software directive needed?

• Harmonize EU legislations and practices in view to facilitate EU integration and consolidation

• Bring closer the EU legislations to the other industrial countries (US, Japan): legislation update in aiming to– provide similar weapons to EU companies in the

worldwide market– and therefore fix the limits in the EU market to foreign

companies• Go out of the vagueness of the current set of EU laws

and provide a EPO juridical frame of actions

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Some keys for a better understanding

• Classic copyright: the specific expression form of an idea:

because « Ideas are free »• Copyright in the ICT sentence: The specific expression form of a code: «

The art of code »

• Consider different ICT applications:– Embedded – Spatial, Aeronautic, Car Building, Ship Building, Military, …

but also washing machine, portable phone, microwaves oven, …– Games – a virtual reality and an ambiance restitution– Office software, ERP, management software (accounting, payroll, supply

chain, stocks management,…)– Base software (OS, middleware, antivirus, antispam, …)

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A complex situation

• 2 paradigms must be considered, less far than very often presented:– Open source and freeware– “Proprietary” software

• Software must be considered following its 2 natures (as it has been scientifically done for the electron: corpuscular (material) and undulatory nature (intangible)

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A complex situation (2)

• Intellectual (i.e. code), – Mainly a protection of the form– The employer has the rights– Copyright protection

• Industrial (i.e. application), – Mainly a protection of the found– The inventor has a part of the rights– Patent protection

• In fact, it is important to develop the Innovation and find a way to have usages restitution and feed back after Innovation. The economic model of value retention has shown some limits, even if it has been a key in the ICT development for these last years

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A complex situation to be understood through an historic approach

• … 1980:

1 computer for many users

• 1980 – 2000:

Personal computer, 1 computer per person, computation and storage quasi unlimited on an individual scale

• 2000 - …

Many computers per people, pervasive ICT

Material reign• 1 July 1972: unbundling,

material and software

separate invoicing

Information value

Knowledge date bases

Freeware, Open source

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Next steps?

• On 24 September 2003, the European Parliament voted a text at the first lecture, based on the European Commission one with adding many amendments

• The EU Commission came back with a text very similar to the first release (before the EP amendments). On 7 March 2005, EU Council approved a text not really far from the original Commission proposal.

• This new text will be submitted to the EP at a second lecture, the MEP reporter should be Michel Rocard

• In fact,– Juxtaposition of 2 Research / Innovation models – Lisbon Strategy relaunch

• The Patentability of Software situation should have been staying unclear for at least 2 years, time to find an agreement between EP and EU Council – therefore some unstable situation for the people on the ground – the worse could be no directive due to no agreement -