Behind closed doors, the  European Union, United States, Japan and other governments are negotiating the Anti-Counterfeiting Trade Agreement. No mandates or drafts are published. The ACTA will contain new rules for the enforcement of copyrights, trade mark rights, patents and other so called “intellectual property” rights. Public interest organisations are concerned ACTA may limit access to medicines, limit access to the internet, give patent trolls free reign and harm the most innovative sectors of the economy.

"The document has confirmed my fears. They want to basically stop everything that can be spread on the Internet, all forms of trademark infringement, and even medicine. It is much more far reaching than I thought. I wonder, finally, what is not covered by ACTA?" said Jens Holm to DN.se.

In the EU, preparatory legal texts have to be published. Informed about the content of the mandate, MEP Jens Holm said he regards the ACTA as legislation.

The ACTA is used to create legislation without democratic control. The European Council said it may adopt the ACTA during parliamentary vacation.

The concerns stated by public interest groups are now confirmed by the secret mandate. The ACTA may limit the freedoms and rights of all Europeans and millions or billions outside the union.

Apparently, the control undemocratic forces have over Europe is so far reaching that DN.se did not dare to publish the mandate itself.

Now, if we are all very quiet, we can hear Robert Schuman turn over in his grave.

See also:

FFII analysis

Open letter by more than 100 public interest organizations

News on the ACTA

Details emerge of secret ACTA negotiation

Interoperability between multi-vendor OOXML applications

Current discussions on open standards highlight that multiple implementations are an important sign that standards are really open (see presentations by Rishab Gosh and by Thiru Balasubramaniam[5]). Regarding ISO's OOXML, the contention is that no company has yet implemented the full standard, not even its primary sponsor Microsoft; and that the six thousand page specification is too complex and too inconsistent to implement. Are these contentions true? If not, governments will want more than verbal claims to the contrary. Moreover, they can easily be countered with third party conformance and interoperability tests, including a plug-test event with multiple OOXML-compliant IT vendors.

Interoperability between ODF applications

All major vendors, Microsoft included, have agreed to support ODF ISO/IEC 26300, or are already doing so. That is, the availability of multiple implementations is not a problem here. Moreover, interestingly, two weeks ago OASIS initiated a technical committee to organize conformance and interoperability tests. Given its scope[6], this committee will provide transparency to governments about the degree of conformance of applications to ODF and the interoperability of ODF-documents. Less clear is whether the committee also intends to address interoperability between standards versions, or more general: what policy it has on standards change[7]. To my knowledge, such policies have not yet been defined by any standards consortium or standards body. They would befit the area of civil ICT standards.

The OASIS committee explicitly does not address "identifying or commenting on particular implementations" or any certification activities. Government procurement officers will ultimately need testing at this level and want to involve an independent third party testing centre for this purpose. Moreover, OASIS, too, might at a later stage want to involve an independent third party in order to avoid credibility problems.

Having two overlapping standards brings about its own problems, as testifies a review of current ad hoc solutions - converters, translators, plug-ins - to re-create compatibility between ODF-products and Microsoft's partial implementation of the OOXML standard[8]. Those who develop a low quality and overlapping standard, qualifications which also OOXML supporters use, are not the ones who pay for the consequences. Regrettably, citizens will be paying the price for lack of interoperability.

Although there is no formal accountability to fall back upon in standardization[9], those who initiated the duplicating effort may feel a - corporate social - responsibility for what happened. Their help is needed to shift interoperability costs from governments and citizens (post hoc) back to IT vendors (ex ante), the source of the interoperability problem. As a start, will they fully cooperate and support OASIS' initiative of conformance and interoperability testing? Are they prepared to shoulder the costs of independent, third party conformance and interoperability tests, tests that are needed to assure governments that no unexpected problems will arise ex post?

Kind regards,

Tineke Egyedi

Delft University of Technology

________

[1] K. Jakobs (2008). The IEEE 802.11 WLAN installation at RWTH Aachen University: A case of voluntary vendor lock-in. In Egyedi & Blind (Eds.), The dynamics of standards (pp. 99-116). Elgar.

[2] See e.g. the recent hearing in European parliament

[3] Standards Edge conference on Public procurement Brussels, 6-7 November 2008. See Jan Stedehouder's blog

[4] More specifically: ISO/IEC JTC1, a joint technical committee that focuses on IT.

[5] Standards Edge conference. See also the draft Agreement on Procurement and Support for Interoperability and Open Standards, to be discussed at the IGF meeting in Hyderabad, India, December 3-6, 2008

[6] The scope of OASIS ODF Interoperability and Conformance (OIC) TC includes "Initially and periodically thereafter, to review the current state of conformance and interoperability among a number of ODF implementations; To produce reports on overall trends in conformance and interoperability that note areas of accomplishment as well as areas needing improvement (…")

[7] Ibid. The dynamics of standards. 2008. Elgar

[8] See also http://ec.europa.eu/idabc/en/document/3439/5585#PEGCSO

[9] M.H. Sherif et al. (2007). 'Standards of quality and quality of standards for Telecommunications and Information Technologies'. In Hörlesberger, et al.(Eds.). Challenges in the Management of New Technologies. World Scientific Publishing Company, pp. 427-447.

The case gave great exposure to the MP and his article also known as the Streisand effect.

The Foundation for a Free Information Infrastruktur (FFII) created a website
http://www.aeusserungsfreiheit.de
which tracked cases of injunctions related to "untrue" information. The group critizises the standards applied by certain judges and the extensive forum shopping that characterises the German Court contributions to the "Soviet Internet". Groups like these expect a reform of current law related to injunctions. Members of the European Parliament currently dicuss the "Soviet Internet" in the context of the French three strikes proposals.

* Manufacturers and developers would need approval from this body before introducing an application or device capable of recording, distributing or copying music to consumers. The body would include technology experts to aid in making those decisions quickly — Patel described this as "sort of like the FDA, but much faster."

That last item could be cause for concern. Developers and manufacturers won't cotton to an administrative body deliberating over their feature sets. On the other hand, it sure beats getting sued by the RIAA, as XM Radio found out last year when it tried to sell a portable satellite radio receiver player with a song-saving feature.

Patel wasn't all business on Monday night. In addition to these bold recommendations, she also revealed that during the Napster trial she joined the Napster network under the user name "Ima Judge." The audience also learned that Judge Patel likes to entertain colleagues at judicial conferences with her rendition of "Momma" from the hit musical Chicago.

There is also a dangerous trend towards making software authors responsible for copyright infringements made by their users, Vuze (ex-Azureus) and Sourceforge are being sued in France for "aiding copyright infringement":

A French court decision earlier this month means that a law suit against the open source software hub, SourceForge, and three peer-to-peer sites including Vuze, can go ahead. If anything signals that graduated response and "co-operation" measures represent an attack on the Internet industry, this could be it.

[…]

The SPPF was relying on the so-called Vivendi amendment to the French copyright law ( known as the DADVSI. The amendment states that anyone publicly setting up and making available software or other technical means to permit the unauthorised copying of works, could be fined up to 300,000 Euro or sent to prison for 3 years. The SPPF is demanding 16 million Euro in compensation from Vuze, and 3.7 million Euro from Morpheus. The case had been blocked, pending the court decision on jurisdiction. It seems it can now be pursued.

Maybe SPPF should sue the authors of Apache web server? Or maybe Microsoft because the users of word can copy parts of a book into a word processor?

Once the Soviet Union required the registration of all typewriters and printing devices with the authorities.

AMENDEMENT

présenté par

C Favorable
G Sagesse du Sénat
Adopté

M. RETAILLEAU

au nom de la Commission des Affaires économiques

Article 2

(Art. L. 331-30 du code de la propriété intellectuelle)

Rédiger comme suit le texte proposé par cet article pour l'article L. 331-30 du code de la propriété intellectuelle :

« Art. L. 331‑30. - Après consultation des parties intéressées ayant une expertise spécifique dans le développement et l'utilisation des moyens de sécurisation destinés à prévenir l'utilisation par une personne de l'accès à des services de communication au public en ligne, la Haute autorité peut établir la liste des spécifications fonctionnelles pertinentes que ces moyens doivent présenter pour être considérés comme exonérant valablement le titulaire de l'accès de sa responsabilité au titre de l'article L. 336‑3.

« Au terme d'une procédure d'évaluation certifiée prenant en compte leur conformité aux spécifications visées au précédent alinéa et leur efficacité, la Haute autorité peut labelliser les moyens de sécurisation dont la mise en œuvre exonère valablement le titulaire de l'accès de sa responsabilité au titre de l'article L. 336‑3. Cette labellisation est périodiquement revue.

« Un décret en Conseil d'État précise la procédure d'évaluation et de labellisation de ces moyens de sécurisation. »

Anti-counterfeiting and anti-piracy measures - Council Resolution

The Council noted the Commission's submissions relating to its communication entitled "An industrial property rights strategy for Europe" (12267/08) and the assessment of the anti-counterfeiting customs action plan for 2005-2008. On the basis of those submissions, the Council held an exchange of views on the subject of anti-counterfeiting and anti-piracy measures, underlining the need to step up cooperation at European and international level in order to curb this phenomenon, which is damaging the competitiveness of undertakings. The Council adopted the following Resolution on a comprehensive European anti-counterfeiting and anti-piracy plan:

"THE COUNCIL OF THE EUROPEAN UNION,

1. CONSIDERING the Commission's strategic report1 and the new cycle of the renewed Lisbon strategy for growth and jobs (2008-2010) launched by the European Council on 14 March 2008;
2. STRESSING that the European Union has been called upon, in this connection, to continue its efforts to make the system for protecting intellectual property rights more efficient in order to combat counterfeiting more effectively;
3. EMPHASISING the need to respect the basic freedoms of the internal market and improve the way it works;
4. POINTING OUT the advisability, in the fight against counterfeiting and piracy, particularly at the borders of the European Union, of harmonising intellectual property rights, where appropriate, and the importance of existing national and Community industrial property titles;
5. CONSIDERING the Community instruments adopted to combat counterfeiting and piracy, particularly Directive 2004/48/EC on the enforcement of intellectual property rights and Regulation No 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights;
6. AWARE also of the amended proposal for a Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights;
7. CONSIDERING the anti-counterfeiting and anti-piracy initiatives which have been developed multilaterally, particularly in the World Trade Organisation (WTO), the World Customs Organisation (WCO), the World Intellectual Property Organisation (WIPO), the Organisation for Economic Cooperation and Development (OECD), the World Health Organisation (WHO) and the G8 (Heiligendamm process);
8. CONSIDERING the Strategy for the Enforcement of Intellectual Property Rights in Third Countries1;
9. CONSIDERING the OECD report on the economic impact of counterfeiting and piracy, particularly its estimate that international trade in counterfeit and pirated goods may have been some USD 200 billion in 2005, on the basis of customs seizures in OECD countries, indicating that the total value of trade in counterfeit or pirated products could exceed this amount by several hundred billion dollars, and considering its recommendations for increased cooperation between governments and industry;
10. AWARE of the seriousness and the worrying growth of the phenomenon of counterfeiting and piracy, in particular in a globalised economy, for the competitiveness of the European Union, for its businesses, creative forces and consumers; aware of the scale of this phenomenon on the Internet too; aware of the risks involved in counterfeiting products, which poses a health and safety hazard;
11. EMPHASISES the importance of protecting intellectual property rights, which are fundamental to promoting culture and diversity, and for drawing full benefit from the research, innovation and creative activity of European undertakings, especially SMEs, in order to support growth and jobs in the European Union and make Europe more competitive in the world;
12. AWARE, against this background, of the need to give innovative companies the means to obtain the best protection for their inventions and to profit from them more efficiently; points out the advantages of a Community patent and a patent court system in order to give users the means to enforce their intellectual property rights throughout the Union;
13. EMPHASISES the need to mobilise all stakeholders to boost the effectiveness of the whole range of instruments for protecting intellectual property and combating counterfeiting and piracy on the internal market and internationally; pointing out that these measures are consistent with due regard for basic rights and general principles of Community law, such as the protection of personal data and the protection of property rights;
14. WELCOMES the Commission communication of 16 July 2008 designed to implement an industrial property rights strategy for Europe, especially as regards the enforcement of industrial property rights and of copyright and related rights:
    • customs initiatives to combat counterfeiting and piracy at the borders and outside the European Union,
    • action to complement legislation, designed to encourage a change in public perceptions of the phenomenon of counterfeiting and piracy, to increase precise awareness of the phenomenon, to improve cooperation between all stakeholders in the Member States, to establish an effective network for administrative cooperation between Member States, to allow for Europe-wide action, and to promote public/private partnership agreements and the conclusion of inter-industry agreements at European level to reduce piracy and the sale of counterfeit goods on the Internet,
    • consideration of how cross-border enforcement of judgements can be improved,
    • action designed to enforce intellectual property rights in third countries, through regular inquiries, through the promotion of effective protection of those rights in bilateral trade agreements, and through closer cooperation in the framework of regular dialogues with third states, especially those with a high level of counterfeiting and piracy,
    • work on a plurilateral anti-counterfeiting trade agreement (ACTA);
15. INVITES the Commission to act on these guidelines by:
    • setting up a European counterfeiting and piracy observatory, defining how it is to operate and the detailed arrangements, including financial arrangements, for setting it up; the observatory, based on the Commission's existing structures, should enable a regular assessment to be made, on the basis of the data which the public and private sectors wish to provide, of the extent of counterfeiting and piracy and a more precise analysis of these phenomena;
    • disseminating information on the phenomenon of counterfeiting and piracy to those involved in combating these phenomena, especially via the Internet,
    • developing action to raise awareness and to communicate with those involved in combating counterfeiting and piracy and with consumers, including the youngest consumers, by, amongst other things, activities organised to mark a European awareness day on the dangers of counterfeiting and by drawing up operational guides;
16. INVITES the Commission and the Member States, acting within their respective spheres of competence, to use all appropriate means to combat counterfeiting and piracy effectively, and in particular to:
    • submit an anti-counterfeiting customs plan for the years 2009 to 2012 which gives priority to information-sharing through full use of electronic systems and the development of cooperation between the authorities concerned, in particular at the border, principally customs authorities, and with rights holders; to make a survey of customs law and evaluate the improvements needed to the legal framework to improve action against counterfeit products which are a danger to consumers and to raise awareness of the risks of the phenomenon,
    • set up a network for the rapid exchange of information on counterfeit products and services, in particular by stepping up cross-border administrative cooperation, drawing on national contact points and modern information-sharing tools,
    • promote coordination between institutions involved in combating counterfeiting and piracy, in particular by sharing good practice between national administrations,
    • study the effectiveness of the legal framework in enforcing intellectual property rights,
    • submit appropriate proposals to encourage public/private sector partnerships to combat counterfeiting and piracy, to recommend good practice, especially as regards Internet sales, and to encourage professionals to work together, step up the protection of intellectual property rights internationally; promote the inclusion, in bilateral and multilateral agreements concluded by the European Union, of measures on intellectual property rights, with due regard for the acquis communautaire, and help to enforce those measures; take an active part in negotiations for the conclusion of a plurilateral anti-counterfeiting trade agreement, including by seeking to secure the creation at such time of a task force with the remit of scrutinising implementation of the agreement; promote the issue in dialogue between the European Union and third countries and in the context of cooperation activities with third countries."

a) It is a kind of warp format that includes several others (mainly image formats).
b) Depending of what image format it includes, it can be consider open standard or not.
c) TIFF is a format (or a set of formats) intended mainly to scanned documents, because it preservates information as the size of the real document.
d) It is a format proposed by Adobe as standard and their specifications are public. It remains a question if to consider standard something that, no matter if its specifications are public, is not developed and maintained by all the interested parts of the market.
e) It is not intended for web, since most web browsers does not read it.
f) Konqueror, from the KDE project, reads it perfectly. :-)

TIFF specifications:
http://partners.adobe.com/public/developer/tiff/index.html

Of course, as usually Microsoft has adopted, extended and tried to adopt, extend and extinguish it adopting its own extensions to TIFF.

So an easy way to read such patents, if you like to continue with Canonical products, is to use Kubuntu instead of Ubuntu.

European Parliament reform

1. All amendments (including split votes, oral amendments) to legislative and non-legislative proposals are published 60 days before their adoption, in order for the public to be able to debate them, whether it is at the committee stage of the plenary stage; last minute Oral amendments are banned;
2. Debate on each amendment is done online, through a comment system similar to Wikipedia discussion page;
3. All committees debates are transcripted with no time of delay, with translation in all 23 EU languages; all EU citizens should be able to participate in the EU legislative debate;
4. All the meetings happening within the walls of the Parliaments are streamed online using royalty-free standards, and recordings are available in no time on FTP and HTTP servers using royalty-free standards;
5. The website of the European Parliament is crap; useful content is hidden in Word files, non-HTML pages, or Microsoft video formats;

Council reform

1. Delegations of Members of the Council are not allowed to have members which are not *directly elected* by EU citizens; Members of the Council should be directly elected by citizens of the EU;
2. All meetings happening in the Council buildings are open to the public;
3. All working group meetings happening in the Council buildings are open to the public;
4. All the meetings happening within the walls of the Parliaments are streamed online using royalty-free standards, and recordings are available in no time on FTP and HTTP servers using royalty-free standards;

Better legislation/regulation

1. European Parliament should install some filters to protect Europe against bad legislative proposals, such as mandatory impact assessment for any proposal which has an impact on the market. An expert committee should assess if the quality of the impact assessment is enough, or if it should be improved or rejected.

Please put your comments below.

Specifically, “Intel or equivalent” was found to be “a violation of Directive 93/36/EEC on public supply contracts, and specifying clock rates was found “contrary to Article 28 of the EC Treaty, which prohibits any barriers to intra-Community trade.

Here is a copy of the Directive 93/36/EEC.

The objective of this call for tenders is to establish a framework contract for a single source purchase channel, covering the acquisition of Microsoft software products and licences. The future contractor has to provide a unique interface between Microsoft and the European Institutions.

Why Microsoft and not another company or another provider? This seems very Microsoft-oriented to me. A call for tender mentioning products from a particular company is not a real call for tender. What is the directive regulating call for tenders?

E-1533/08EN
Answer given by Mr Kallas
on behalf of the Commission
(14.5.2008)

1. On 22 May 2007, the Commission concluded - on its own behalf as well as on behalf of another 37 EU Institutions (including the Parliament) and Agencies - the so-called “Interinstitutional Licensing Agreement” (ILA) with Microsoft Ireland Operations Ltd, which governs the non-perpetual right to use a number of Microsoft software products, both on part of the central server infrastructure and for the final users (desktops and laptops). This subscription-based contract entered into force on 1 June 2007 for an initial duration of three years and may be renewed for one additional year. Concerning its financial value, the Commission refers the Honourable Member to its reply to written question E-2735/031 by Mr Ford; as stated therein, the ILA does not involve any direct revenue to Microsoft because the products are acquired through a Large Account Reseller (LAR) selected through an open call for tenders. See point 2 for further information on the LAR expenditure.

In addition, on 31 May 2007, the Commission concluded - on its own behalf as well as on behalf of another 21 EU Institutions (including the Parliament) and Agencies - a framework contract with Microsoft SA/NV (Belgium) covering the provision of high-level services related to the use of products acquired under the ILA. This framework contract, which replaces a previous one, entered into force on the date of signature for an initial duration of three years and may be renewed for one additional year.

During 2007, the Commission signed specific contracts for an amount of €32,000 under the previous framework contract for services and €1,336,800 under the new framework contract (i.e. since 31 May 2007).

Again during 2007, the totals - including the Commission and the other concerned EU Institutions and Agencies which, by 31 March 2008, had notified the relevant figures for the purposes of Article 118(4) of the Implementing Rules2 - are €1,081,610 under the previous framework contract for services and €2,241,565 under the new framework contract (i.e. since 31 May 2007). These totals have been published pursuant to the above-mentioned provision3.

2. During 2007, the Commission paid a total amount of €4,484,023 under its framework contract with the LAR chosen following an open call for tenders, in consideration for the software products covered by the ILA; another 12 EU Institutions and Agencies were parties to this framework contract, which had entered into force on 23 February 2004 and expired on 22 February 2008.

Again during 2007, the total - including the Commission and the other EU Institutions and Agencies participating in the Commission’s contract with the LAR which, by 31 March 2008, had notified the relevant figures for the purposes of Article 118(4) of the Implementing Rules - is €7,242,525.72. This total has been published pursuant to the above-mentioned provision 4.

A new LAR contract has been awarded following a recent call for tenders5, but it was not used during 2007.

It should be stressed that the Commission does not acquire any peripherals (such as keyboards and mice) from Microsoft, as this type of equipment is included in the calls for tender aimed at acquiring the hardware to which the peripherals are connected (e.g. personal computers (PCs) or laptops). The Commission is not aware of any such acquisitions by the other EU Institutions and Agencies either.

3. The Commission does not pay to Microsoft any fees in relation to intellectual property rights, other than those already included as part of the right to use the software products covered by the ILA, and paid through the LAR.

The Commission is not aware of any such separate payments by the other EU Institutions and Agencies either.

4. According to the metrics defined in the ILA, the total number of end users at the Commission in 2008 can be estimated at 35,960 worldwide. This figure corresponds roughly to the number of PCs on which the reference configuration for client desktops (including software products from Microsoft and several other editors) is installed. It includes the 25,537 permanent posts (officials) and 483 temporary posts (temporary agents) laid down for the Commission in the Authorised Establishment Plan (Staff) of the General Budget 2008, as well as other categories of users (contract staff, local staff, special advisers, seconded national experts, trainees, external service providers, etc.).

The Commission cannot provide the precise number of end users for the other EU Institutions and Agencies included in the ILA, as this exercise involves the computation of parameters which are defined in their individual specific contracts with the LARs.

The Commission would point out that, by comparing its LAR expenditure in 2007 with the current total number of end users, one reaches a figure of around €125 (per year and end user). It should be noted that this figure represents only a marginal part of the cost of operating and maintaining the Commission’s office automation environment. It does not correspond to any particular unit price laid down in the ILA, but to the right to use a combination of products acquired through the LAR. In any case, one can note a significant decrease in comparison with previous years. For example, in the Commission’s reply to written question E-2735/03 mentioned above, the total annual cost of Microsoft products for its central office automation infrastructure was estimated to be around €226 per user.

Media Player not found
This page has been designed for:

* 'Windows Media Player 9 Series or later' for IE
* 'Windows Media Player 9 Series or later' media player 0.8.5 later' for Firefox.

'Windows Media Player 9 for Firefox' under LinuxPPC?

Does not work here.

This site is optimized with the following software

• Explorer (min version 5.5) / Netscape (min version 5) / Firefox (1.0.1) / Safari

• Real Player (min version 8)

• Flash (min version 6)

• This site uses JavaScript and cookies.

None of those protocols and file formats are described in specifications, neither they are standardized nor free of patents or other restrictions. Why Europe is choosing technology which is not accessible to everybody, regardless of the platform?

Hartmut Pilch, FFII: Ist es wirklich in Ordnung, wenn man Software patentierbar macht, ohne vorher eine systematische Studie der ökonomischen Auswirkungen einer solchen Änderung zu erstellen

Tauchert: Selbstverständlich. Wir brauchen keine ökonomische Studie. Die Wirklichkeit spricht für sich. Der Markt hat das Urteil bereits gesprochen. Bei uns gehen jedes Jahr Tausende von Anträgen auf Softwarepatente ein, und unser Patentsystem wirft Gewinne ab. Es ernährt ohne staatliche Zuschüsse 20000 Patentspezialisten.

Harmut Pilch: Is it really appropriate to make software patentable, without conducting a systematic study of the economical effects of such a change first.

Tauchert, DPMA: Absolutely. We don't need economic studies. The reality speaks for itself. The market already made its judgement. We receive every year thousands of applications for software patents and our patent system is profitable. It feeds without state subsidies 20 000 patent specialists.

A Public Service Organisation out of control?

As has been widely reported in the last few days, the European Patent Office appears to consider itself not to be bound by European Directives. In the specific case mentioned there was an alleged contravention of the Directive on Biotechnology in relation to European Patent EP-B1 0 695 351.

The European Patent Office is not part of the European Union

Although originally intended to be the authority charged with the grant of patent rights for the European Community, the EPO was created outside the framework of the European Union. As a result, the European Patent Office is in many respects an "autonomous state", which is not bound by any of the directives of the EU unless it so chooses. The "Head of State" is the President, Ingo Kober. He is responsible solely to the Administrative Council, a body made up of representatives from the 19 contracting states who are party to the European Patent Convention. This body is not democratically elected and is accountable only to the respective national governments. As a body created by a separate international treaty this body is not directly bound to any national or international law other than the European Patent Convention, the EPC.

Further loosening of democratic control is contemplated

This Administrative Council is currently contemplating far-reaching changes to the Eurpoean Patent Convention. These changes will effectively mean that in future the Administrative Council can decide autonomously on the future direction of the law governing the award of patent rights in Europe, and the very law by which it is governed itself. No agreement by the European Parliament or any other publicly accountable European organisation will be needed and, as in all deliberations of the Administrative Council, many of which are held in secret session, there will be no participation of society at large. This opens the door to uncontrolled wide-ranging changes to the European Patent System. Recent events suggest that these changes may be against the interest of European citizens.

The Administrative Council already fails to defend the interests of the European public

The Administrative Council has put the Office under pressure to grant patents as fast as possible, without, however, creating the conditions that would make it possible to recruit the necessary staff. This means that the existing staff, already working to their full capacity, are being put under pressure to examine cases faster and faster. With less time being allowed to consider the complicated technical and legal questions which arise in patent examination, it is to be feared that the standards applied will drop. Statements in the press attributed to an EPO spokesman acknowledge that increasing production pressure can indeed lead to errors. See for example:

http://news.bbc.co.uk/hi/english/uk/scotland/newsid_653000/653067.stm

http://www.tagesthemen.de/archiv/2000/02/22/sendung/tt-2230/meldung/gene.html

This could in turn lead to a larger number of patents of dubious validity ("junk patents"), thus impeding fair and open competition in the European Market, and hence threatening the employment market in Europe. This is however simply the tip of the iceberg. Lack of legal security for staff threatens standards The EPO is not bound by many of the laws or regulations that most of the citizens of Europe take for granted, such as the European Convention on Human Rights.

Some examples:

• The Employment Law offers the staff extremely limited protection. Staff can be dismissed almost at will by the President and have no claims to unemployment pay or other social security payments:
• Basic legal rights are ignored. The President is the ultimate ruler of the EPO. He is judge, jury and executioner. His decisions on matters within the office are final. Any decision made by the President can be enacted immediately. There is no "stay of execution" pending the outcome of appeal hearings. Sanctions are arbitrary and harsh. This makes the staff extremely vulnerable to pressure from the management in order to meet demands, e.g. by increasing output to a level beyond which it is possible to assure sufficient attention to detail.
• European safety and health standards are not applied on EPO premises.
• Even criminal law is disregarded: In 1995 the then President of the EPO physically attacked and injured a staff member, the Administrative Council of the EPO subsequently refusing to lift the immunity of the President.

Conclusion

The Administrative Council has shown a tendancy to treat the office as a commercial entity rather than as the public service organisation it is. This results in the continuing demands for ever more granted patents, while refusing to increase the resources of the European Patent Office accordingly. SUEPO, the Staff Union of the EPO soundly condemns this development due to the risks it poses to the quality of patent rights granted in Europe. It is high time that steps are taken to change the structure of the Organisation making it accountable for its actions to the citizens of Europe and their elected representatives.

WRITTEN QUESTION E-4896/07
by Erik Meijer (GUE/NGL)
to the Commission

Subject: Malfunctioning of computers and peripheral equipment where Windows XP is replaced by Windows Vista, and pre-installation of Vista in new computers

1. Is the Commission aware that Microsoft has replaced its 'Windows XP' system by the 'Windows Vista' system, initially for business users and since 30 January 2007 also for the consumer market, and that 'Windows Vista' has since been pre-installed on many new computers?

2. Is the Commission aware of complaints by the Netherlands Consumentenbond (Consumer Association), which commented in August that the new operating system has not yet been adequately developed and is not yet a satisfactory replacement for XP, as it has too many flaws which can only be sorted out by seasoned computer users, and not by ordinary users, and is it aware that the Consumentenbond has set up a centre for registering users' complaints and that within the space of a month 5 200 complaints were received, including complaints about compatibility with peripheral equipment and usability of old software and hardware in combination with Visa?

3. Is the Commission aware that these complaints indicate that, with Vista, computer programmes, printers and video cards often fail to work and network connections are lost, that for this reason the Consumentenbond is advising consumers to only purchase Vista if they are sure that their hardware and software will continue to work with it, and that it also takes the view for this reason that, pending a fully‑fledged version of Vista, Microsoft should give dissatisfied customers the opportunity to go back, without additional charge, to the old, tried and tested Windows XP system?

4. Is the Commission aware that Microsoft only allows - via its OEM partners which supply Windows on their PCs - business clients with the more expensive 'Ultimate' version of Vista to go back to Windows XP, but that for ordinary consumers it has confined itself to date to developing a 'Service Pack 1' which is to make Vista more secure and faster in future and which is currently being tried out on selected testers before being available to everyone to purchase in 2008?

5. What steps is the Commission taking to require producers to supply computers in which, at the option of the customer, an operating system may be installed without bundling with Windows, or at least to ensure that purchasing without a built‑in system is made easier, which, according to the recent advice by the Globalisation Institute, would increase consumer choice?

Sources:
www.nu.nl/news/1251877/50/: Geen _gratis_XP_voor_ontevreden_Vistaklanten
www.globalisation.eu: Policy Briefing Globalisation Institute: Unbundling Microsoft Windows

E-4896/07EN
Answer given by Mrs Kroes
on behalf of the Commission
(26.11.2007)

The Commission is well aware of the launch of Microsoft's Vista operating system and has devoted considerable attention to ensure that Microsoft complies with its obligations under European competition law when launching Windows Vista.

The Honourable Member's questions 2 to 4 do not relate to any concerns with regard to anti-competitive behaviour but to alleged flaws in Microsoft's products or its marketing strategy. The Commission is aware of the various problems consumers appear to have experienced in relation to Windows Vista. Existing EC legislation provides consumers who buy a faulty product (i.e. a computer) with a number of rights. However, the Commission is not entitled to intervene in private disputes. It is up to the Member States to ensure that national laws are brought into conformity with European legislation and that these laws are complied with.

In reply to the Honourable Member's concern over the fact that it is hard to obtain a computer without the Microsoft operating system installed on it, this is an issue the Commission is aware of and is currently monitoring.

The Commission is aware of the difficulties encountered by consumers who want to obtain a PC without a pre-installed operating system. To the Commission's knowledge, the license agreements between Microsoft and the PC producers encourage by way of rebates the pre-installation of an operating system on PCs. However, the operating system does not necessarily have to be one produced by Microsoft. The Commission is not aware of a financial or contractual obligation which would prevent the PC producers from selling their computers without a pre-installed Microsoft operating system. The Commission is aware of one major PC producer which offers a product with Linux pre-installed, as well as of a number of smaller vendors which do likewise and/or offer PCs without an operating system pre-installed.

It appears, rather, that the structure of the market and demand from consumers is the driving force behind the decisions by PC vendors to offer preinstalled operating systems on their PCs. Since the behaviour of PC producers is explained by commercial reasons and is not the result of any behaviour in breach of the EC competition rules it does not fall within the remit of EC competition law.