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."

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.

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.

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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.

WRITTEN QUESTION E-1218/08
by Raül Romeva i Rueda (Verts/ALE)
to the Commission

Subject: Use of patented software standards within public administrations

The 'European ICT crossroads: A new direction for global success' conference organised by the Commission's DG Enterprise and Industry on 12 February 2008 could turn out to have been a decisive moment for communications and information in the EU. The idea contained in the conference's title, at least, should be a turning point. It also embodies the very essence of what could be seen as the ideal framework for a wide-ranging and open discussion – without pre-formed ideas – on defining a European strategy on communications, in the search for tools and systems, with a major potential for the future, that are and within the grasp of a greater number of citizens. However, a quick assessment of the discussion document reveals certain worrying features, indicative of a certain tendency towards standardisation by means of patents, which in practice involve the exclusion of free software which is available free of charge. The document clearly supports the (F)RAND option with regard to managing intellectual property rights, which in practice implies not only that a choice has been made beforehand, but furthermore that this choice favours a system which benefits, and is in the hands of, the large software developing companies, rather than users. The document actually explicitly states, several times, that it is impossible for the legislators to impose cost-free status under these circumstances. This means that the commitment to patented standards could run contrary to fundamental principles such as equality, particularly with regard to access to information, and could hamper the implementation of the manifest desire to encourage more effective communication with citizens, which is crucial to the objective of encouraging citizens to identify more closely with the institutions and with European integration. This being so,

Has the Commission taken into account the important, and still increasing weight of open-code software within the information society and the economy in Europe? Does the Commission not think that it is necessary thoroughly to revise the stances adopted in the discussion document, and launch the debate from a broader perspective? Does the Commission not think that the option proposed runs contrary to the Lisbon Strategy of turning the EU into the world's most competitive economy based on the knowledge society, in which development and guaranteed free access to information technology are decisive?

Economics of Patent Activity
The Trilateral Offices recognized the importance of economic studies related to
patenting and innovation and intend to take a lead in building a network in this respect.
A micro economic approach would be most suitable for the Trilateral Offices. However
to support strategic considerations a macro economic context will be investigated.
Such a study may require involvement of other partners. The Trilateral Offices will form
the core part of the network. Duplication of work and studies already performed by
other entities will be avoided. The EPO will take a lead and will draw up a plan forward.
The three Offices will continue discussions in this area and will expand these
discussions to other interested parties. The Offices will begin this review by
identifying near term issues of importance to the three Offices.

Now, I am no US citizen but the same often happens in Europe as well. The European Parliament is currently petitioned with the campaign
http://www.openparliament.eu
to prevent the same problem to occur in Europe.

Citizens and stakeholder groups should not have to use the software of a single company in order to communicate with their elected officials or participate in the legislative process.

All companies should be given the chance to compete freely for contracts to supply ICT services to the European Parliament.

I am a citizen of the EU, and I want the European Parliament to adopt the use of open standards and to promote interoperability in the ICT secto

But what when I would face the same problem with European patent databases provided by the European Patent Office? What a pity that even European Union regulation would not affect the European Patent Office as it is not part of the EU and not under control of any parliament.

Parliamentary questions
29 November 2007
E-5911/07
WRITTEN QUESTION
by Saïd El Khadraoui (PSE) to the Commission

Subject: Sale of the new Apple iPhone

Apple intends to market its iPhone in a number of European countries this year, for example in France, Germany and the United Kingdom. However, anybody who buys an iPhone is required to take out a subscription with a particular operator. In France it will be Orange, and in Germany T-Mobile.

In Belgium, there is strict legislation concerning commercial practices, which completely prohibits tied sales. In other European countries, the law on this subject is less strict, depending on how European Parliament and Council Directive 2005/29/EC(1) of 11 May 2005 on Unfair Commercial Practices is interpreted.

1. By concluding exclusivity contracts with an operator in each Member State, is Apple infringing Directive 2005/29/EC?
2. Will the Commission ask Apple to explain its actions? If so, when?
3. Does the Commission intend to revise Directive 2005/29/EC? In doing so, will the Commission adopt a stricter attitude towards all forms of tied selling?

(1) OJ L 149, 11.6.2005, p. 22.

Here is the answer of the Commission (DOC format, sign the petition here to get rid of that format):

E-5911/07EN
Answer given by Ms Kuneva
on behalf of the Commission
(11.2.2008)

The compatibility of any exclusivity contracts between Apple iPhone and telecom operators with laws on unfair commercial practices and unfair competition laws is to be assessed by the national authorities and courts. The Commission is aware that legal proceedings are ongoing at national level. The Commission has no enforcement powers regarding these rules and cannot intervene or give legal interpretations in individual cases under Directive 2005/29/EC1.

Whether or not there is a violation of the EU antitrust rules laid down in Articles 81 and 82 of the EC Treaty depends on a range of factual, economic and legal issues. Apple is not dominant in the market for mobile handsets. Likewise, the operators that distribute the iPhone in the UK, France and Germany are unlikely to be dominant in their respective markets for the provision of mobile telephony services to end users.

The compatibility of the current Belgian legislation prohibiting joint offers with Directive 2005/29/EC on Unfair Commercial Practices will be assessed by the European Court of Justice following recent requests for preliminary rulings (C-261/07 VTB-VAB v.n.v. Total Belgium and C-299/07 Galatea BVBA v. Sanoma Magazines Belgium NV).

By 2011 the Commission shall submit a report on the application of Directive 2005/29/EC. The report shall be accompanied, if necessary, by a proposal to revise the Directive. An impact assessment would precede any proposal.

The Commission would like to draw the Honourable Member's attention to the fact that other EU consumer protection legislation could be relevant in this context. In particular, the Unfair Contract Terms Directive [2] aims at preventing significant imbalances in the rights and obligations of consumers, on the one hand and sellers and suppliers, on the other hand. This general requirement is supplemented by a list of terms which may be regarded as unfair. Terms which are found by a national court, tribunal or administrative body to be unfair under the Directive are not binding on consumers. The Directive also requires contract terms to be drafted in plain and intelligible language and states that ambiguities will be interpreted in favour of consumers.

So, for instance, a contract term which has the object or effect of limiting consumer's freedom to choose a telecom operator may, in some cases, be regarded by a national court as unfair and therefore not binding on consumers.

[1] Directive 2005/29/EC of the Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the Parliament and of the Council and Regulation (EC) No 2006/2004 of the Parliament and of the Council (‘Unfair Commercial Practices Directive’), OJ L 149, 11.6.2005.
[2] Council Directive 93/13/EC of 5 April 1993 on unfair terms in consumer contracts , OJ L 95, 21.4.1993.

Here is the question refered to the ECJ in the case Case C-261/07 VTB-VAB v.n.v. Total Belgium:

Reference for a preliminary ruling from the Rechtbank van
Koophandel te Antwerpen (Belgium) lodged on 1 June
2007 — VTB-VAB NV v Total Belgium NV
(Case C-261/07)
(2007/C 199/28)
Language of the case: Dutch
Referring court
Rechtbank van Koophandel te Antwerpen
Parties to the main proceedings
Applicant: VTB-VAB NV
Defendant: Total Belgium NV

Question referred

Does Directive 2005/29 (1) of the European Parliament and of the Council concerning unfair commercial practices preclude a national provision such as Article 54 of the Belgian Law of 14 July 1991 on commercial practices, consumer information and consumer protection, which, subject to the exhaustive list of exceptions contained within that Law, prohibits any collateral offer by a seller to a consumer, including an offer in which goods which the consumer has to buy are tied to a free service, the acquisition of which is linked to the purchase of the goods, notwithstanding the circumstances of individual cases, in particular notwithstanding the possible influence of the actual offer on the average consumer, or whether, in the actual circumstances, that offer may be regarded as contravening the professional duty of care and genuine commercial custom?

(1) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).

Here is the other one on C-299/07 Galatea BVBA v. Sanoma Magazines Belgium NV:

Reference for a preliminary ruling from the Rechtbank van
koophandel te Antwerpen (Belgium) lodged on 27 June
2007 — Galatea BVBA v Sanoma Magazines Belgium NV
(Case C-299/07)
(2007/C 199/36)
Language of the case: Dutch
Referring court
Rechtbank van koophandel te Antwerpen

Parties to the main proceedings
Applicant: Galatea BVBA
Defendant: Sanoma Magazines Belgium NV
Question referred

Do Article 49 of the EC Treaty concerning the freedom to provide services and Directive 2005/29/EC (1) of the European Parliament and of the Council concerning unfair commercial practices preclude national legislation, such as Article 54 of the Belgian Law of 14 July 1991 on trade practices and consumer information and protection, which — except in the cases listed exhaustively in that law — prohibits any linked offer by a vendor to a consumer whereby the acquisition, whether or not free of charge, of products, services, advantages or vouchers with which they can be obtained is linked to the acquisition of other, even identical, products or services, and this regardless of the circumstances of the case, and especially regardless of the influence which the specific offer may have on the average consumer and regardless of whether that offer can be considered in the specific circumstances to be contrary to professional diligence or fair commercial practices?

(1) Directive 2005/29/EC of the European Parliament and of the Council of 11 may 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).

The Belgian law in question is Art54 of the law of 14 July 1991:

Combined offers

Combined offers are defined in Article 54. A combined offer means that some advantage is granted when buying a good or a service.
As a general rule, these offers are prohibited. Only combined offers that are limitatively enumerated in the Act are authorised.

Examples of authorised combined offers :

* goods that form a whole (e.g. a frame and the eyeglasses for spectacles);
* free package when buying the main product (e.g. a drinking glass);
* free promotional item when buying the main product;
* free tickets to take part in an authorised tombola when buying the main product;
* customer cards (e.g. buy 10 products, get 10% off the purchase of the 11th one);
* discount stamps (since they can almost be regarded as money, the issuing of such stamps is subject to stringent regulations and issuers must guarantee repayment to the holders of discount stamps).

Now, there are some more documentation about the legal interpretation here on AEL website on pre-installed Microsoft Windows OEMs.

WRITTEN QUESTION E-1218/08
by Raül Romeva i Rueda (Verts/ALE)
to the Commission

Subject: Use of patented software standards within public
administrations

The 'European ICT crossroads: A new direction for global success' conference organised by the Commission's DG Enterprise and Industry on 12 February 2008 could turn out to have been a decisive moment for communications and information in the EU. The idea contained in the conference's title, at least, should be a turning point. It also embodies the very essence of what could be seen as the ideal framework for a wideranging and open discussion – without pre-formed ideas – on defining a European strategy on communications, in the search for tools and systems, with a major potential for the future, that are and within the grasp of a greater number of citizens. However, a quick assessment of the discussion document reveals certain worrying features, indicative of a certain tendency towards standardisation by means of patents, which in practice involve the exclusion of free software which is available free of charge. The document clearly supports the (F)RAND option with regard to managing intellectual property rights, which in practice implies not only that a choice has been made beforehand, but furthermore that this choice favours a system which benefits, and is in the hands of, the large software developing companies, rather than users. The document actually explicitly states, several times, that it is impossible for the legislators to impose cost-free status under these circumstances. This means that the commitment to patented standards could run contrary to fundamental principles such as equality, particularly with regard to access to information, and could hamper the implementation of the manifest desire to encourage more effective communication with citizens, which is crucial to the objective of encouraging citizens to identify more closely with the institutions and with European integration. This being so,

Has the Commission taken into account the important, and still increasing weight of open-code software within the information society and the economy in Europe? Does the Commission not think that it is necessary thoroughly to revise the stances adopted in the discussion document, and launch the debate from a broader perspective? Does the Commission not think that the option proposed runs contrary to the Lisbon Strategy of turning the EU into the world's most competitive economy based on the knowledge society, in which development and guaranteed free access to information technology are
decisive?

The position of the DG Enterprise is definitely to prefer RAND patented standards, and exclude free software from public administrations.

Here is the announcement (here is the online registration):

An Evening with Marks & Clerk

Software Patents - What IT Practitioners Need To Know

Date: Thursday 31st January 2008
Time: 18.30 - 20.45
Venue: Marks & Clerk, 3rd Floor, 90 Long Acre, London, WC2E 9RA

Introduction

The YPG have launched a new series of events called 'An Evening with…' which feature companies and individuals who are working in leading areas of IT. These events aim to provide sound information on a specific topic and give practical advice. As ever, there will be time for some informal networking afterwards.
Synopsis

There have been many heated discussions on software patents but no matter which side you take, software patents are here and have real implications for the industry. Many American businesses are adept at using software patents to their advantage; this talk aims to level the playing field by providing advice on how to deal with the practical issues of software patents from practitioners of the law.

The Young Professional Group has teamed up with Marks & Clerk in order to provide you with the expert's view of the current state of patent law. Covering US, EU and UK patent requirements, this talk will provide you with a basic understanding of patent law in these three key markets. Strategies to protecting your intellectual property will be discussed, both defensive and offensive and other practical issues that should be considered when deciding on an IP strategy.

This talk will not cover the on-going debate on software patents, nor the economics behind the arguments.
Speakers

John Collins, a Partner in Marks & Clerk, obtained his first degree in Medical Physics and went on to do a PhD in Physics where he spent most of his time programming a computer control for an infrared spectrometer. John has been in the patent profession since 1990 and has been involved in several important events such as advising MEPs during the EU debate on the failed software patent directive and the recent UK landmark Aerotel and Macrossan case.

Mark Kenrick is a Chartered and European Patent Attorney with a degree in Computer Science from the University of Manchester. Mark specialises in patent matters relating to computer software and business methods, and has been involved in patent litigation in the High Court, Patents County Court and European Patent Office Boards of Appeal relating to the patentability of software, most notably acting in a petition to the House of Lords in Macrossan's application.

Matthew Farrow qualified as a UK and European patent attorney after working as an audio coder and graphics artist for a commercially released computer game, a brief spell developing database front-end and back-end systems for a company specialising in telco provisioning software, and spending his spare time designing game levels for multiplayer first person shooters. Matthew has worked in diverse fields such as satellite and cable set-top boxes, internet search engines, aircraft de-icing systems and door closers.

Agenda

18.30 Reception
19.00 Introduction
19.05 Software Patents (What they are, current trends)
19.30 Practical Advice on Software Patents
19.55 Q&A & Informal Networking
20.45 Finish

Here is the proposed amendment by a british MEP Christopher Hilton-Hearris (in bold is the new text proposed):

Amendment by Christopher Heaton-Harris
Amendment 80
Paragraph 9 a (new)

9a. Urges the Commission to oblige all those active in the sector to join forces and seek
solutions equitable to all with the aim to develop the offer of legitimate online
content and to make sure that all the involved stakeholders act responsibly. In the
event that adequate solutions have not been found within a reasonable period of
time that should not exceed 1 year, calls on the Commission and the Member States
to adopt legislative measures obliging Internet service providers to cooperate in the
fight against online piracy. This cooperation of Internet service providers should
include the use of filtering technologies to prevent their networks being used to
infringe intellectual property, the removal from the networks or the blocking of
content that infringes intellectual property, and the enforcement of their contractual
terms and conditions, which permit them to suspend or terminate their contracts
with those subscribers who repeatedly or on a wide scale infringe intellectual
property; draws Member States' attention on this point to the fact that legislative
measures which oblige Internet services providers to cooperate in the fight against
online piracy would be more effective than the legal pursuit of users who infringe
intellectual property;

Another amendment is also covering "P2P website designers":

Amendment by Erna Hennicot-Schoepges
Amendment 89
Paragraph 9 b (new)
9b. Takes the view, therefore, that the Commission should consider establishing close
consultations between the industry, Internet access providers, consumers, P2P
website designers and all categories of rights holders and all other parties in order
to more openly examine the new forms of consumption and the resulting uses, with
the aim of putting in place permanent, legal models for the distribution and use of
new online products and services;

It might be a good idea to contact MEPs members of CULT and ask them to reject this intrusive proposal.

Because of its complex and tacit nature, R&D has for long times been one of the least mobile
activities of Multinational Enterprises (MNE). The technological capabilities of firms were far
less globalised than their other activities, such as marketing and investment in production fa-
cilities.

What does innovation mean according to the opinion? Patenting:

Firms by large performed R&D and undertook patenting at their home country for
three main reasons. The first was the tacit, person-embodied non-transferable character of
much technological knowledge, which led to locational ‘stickiness’. Secondly, firms (includ-
ing MNEs) are strongly shaped by their home country’s specialisations and national innova-
tion systems (including, e.g., accumulated research skills and labour force skills).24 Thirdly,
also issues of security and protection played a certain rule. With increasing global governance
effort towards IPR this risk gradually diminishes.

We observe the effect of false indicators. As patents are used as a measurement for knowledge, an expansive interpretation in favour of the patent industry follows.

However, current evidence on flows of R&D suggests that the global business environment
has changed. Due to intensified global competition, companies have been forced to innovate
more quickly and develop commercially viable products and services more rapidly. Relevant
knowledge has become increasingly multidisciplinary and global in scope, making innovation
both more expensive and riskier. At the same time, some barriers to the dispersion of R&D
have become less significant owing to rapid developments in information and communication
technology and international regulation attempts. These trends imply changes in the govern-
ance of innovation in MNEs, with important implications for the role of subsidiaries in recog-
nising and exploiting the potential for innovation. This resulted in more global distributed
R&D networks25, and MNEs increasingly becoming integrators of globally distributed R&D
forcing them to manage their global innovation networks resourcefully with a right balance
between local in-house R&D, external R&D, and R&D performed at foreign affiliates or by
foreign partners.26 As a result both inward and outward foreign direct investment in R&D be-
came increasingly important. These changes are closely related to the paradigm of open inno-
vation27.

Open Innovation is a pefect phrase as it can mean anything. Here however, open innovation means a patent market.

The open innovation model is a dynamic (and less linear) approach where companies look
inside-out and outside-in. Increased R&D cooperation and higher reliance on external sources
have become important ways of knowledge sourcing in order to generate new ideas and bring
them quickly to the market. At the same time companies commercialise both their own ideas
as well as innovations from other entities, in which academic research occupies a major place.
Companies may also spinout technologies and intellectual property that were internally devel-
oped but are determined to be outside the core business and better developed and commercial-
ised by others. Multinationals heavily link up to start-up-firms, spin-offs and the public R&D
system through their permeable boundaries. Companies’ solid boundaries are transformed
into a semi-permeable membrane that enables innovation to move more easily between the
external environment and the companies internal innovation process

Full report: 13 Dec 2007 - 1207/07 - Conclusions on "Internationalisation of R&D - Facing the Challenge of Globalisation: approaches to a proactive international policy in S&T based on the report of the OMC Working Group "Policy approaches towards S&T cooperation with third countries"