The Public is the Problem!
Given that I’ve never been shy about voicing criticisms of intellectual property, is it not paradoxical that my favourite legal event of the year is the Fordham International IP Conference? Organized as it is by self-declared ‘high-protectionist’ Hugh Hansen, an iconoclastic and entertaining fellow notwithstanding his copyright convictions, it provides an annual snapshot of the state of the IP world as seen mostly by those who make money out of it. Today, whilst looking over some documents related to the European Patent Litigation Agreement (EPLA) I was reminded of some vintage remarks proclaimed there this year.
The context was a review of the series of events which culminated in the death of the Software Patents Directive in July last year. The high-level representative presenting the Commission’s reading of events explained the car-crash by insisting that poorly informed people had too much access to the European Parliament, and the elected representatives there opportunistically confused the issue. Could she be referring to the people who invent fake citizens groups and rent crowds for pro-patent interests, or our friends at the Foundation for Free Information Infrastructure? I leave that to you, dear reader, to decide…
I actually worked at DG 13 of the Commission (albeit as a lowly stagaire) when the ill-fated directive was born under the wrong star back in 1999. Despite the fact that researchers working for the EU had questioned the centrality of patents to appropriating the benefits of innovation, pro-patent dogmas were the stuff of faith. An honourable exception to this was Paul Schwader, seconded by the European Patent Office to DG 13, who subsequently left. Why the Directive on Computer Implemented inventions wasn’t canned early on can only partially be explained by the political pressure exerted by players such as Nokia and Microsoft. Another important factor resides in the dynamics entrenched in bureaucratic institutions. Civil servants who have followed a legislative proposal for many years become attached to it, they are loathe to give it up, after all it doesn’t look pretty on the CV. The problem is that they are acting out of pure self-interest as successfully marshalling a proposal to fruition would be a boon in career terms.
Today the Commission has a problem, of the three institutions it is the least accountable. Whereas for many years their intellectual property initiatives passed unnoticed by any other than gleeful industry lobbyists, today there are well informed and public-minded people tracking their activity attentively. And whilst almost everyone agrees that the patent litigation is too slow, expensive and can be strategically gamed by those with deep-pockets , that doesn’t mean that the EU will be given a carte blanche. EPLA opponents have rounded on it as a means to launder the questionable sotware patents already issued by the European Patent Office, and transfer judicial power to an unaccountable europe-wide court.
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