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Software Law: Latest Developments in Europe

Patentability of Software: towards a EU directive?

1 April 2005 Alain Moscowitz 1

Current situation in the EU Internal Market • A fact: laws and practices are different following the different EU countries • Innovation, services and market dynamics: – Lisbon Agenda (conclusions of the Council of EU last 23rd march) – Services (Bolkestein Directive) – Rome Treaty => Rome II ?

• In fact, the debate is over technical law issues. It is mainly a political debate regarding Innovation and Research, the place of the open concurrence and the open market in the EU, sustainable development, growth and employment: “Knowledge and innovation – engines of sustainable growth (EU Council 23 March 2005) • The research is in fact at the some time: – Public (large collective diffusion) And/or – Private (return on investments) 1 April 2005 Alain Moscowitz 2

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

• Harmonize EU legislations and practices in view to facilitate EU integration and consolidation • Bring closer the EU legislations to the other industrial countries (US, Japan): legislation update in aiming to – provide similar weapons to EU companies in the worldwide market – and therefore fix the limits in the EU market to foreign companies • Go out of the vagueness of the current set of EU laws and provide a EPO juridical frame of actions 1 April 2005 Alain Moscowitz 3

Some keys for a better understanding

• •

Classic copyright

: the specific expression form of an idea: because « Ideas are free »

Copyright in the ICT sentence

: The specific expression form of a code: « The art of code » •

Consider different ICT applications:

– Embedded – Spatial, Aeronautic, Car Building, Ship Building, Military, … but also washing machine, portable phone, microwaves oven, … – Games – a virtual reality and an ambiance restitution – Office software, ERP, management software (accounting, payroll, supply chain, stocks management,…) – Base software (OS, middleware, antivirus, antispam, …) 1 April 2005 Alain Moscowitz 4

A complex situation • 2 paradigms must be considered, less far than very often presented: – Open source and freeware – “Proprietary” software • Software must be considered following its 2 natures (as it has been scientifically done for the electron: corpuscular (material) and undulatory nature (intangible) 1 April 2005 Alain Moscowitz 5

A complex situation (2)

• Intellectual (i.e. code), – Mainly a protection of the form – The employer has the rights – Copyright protection • Industrial (i.e. application), – Mainly a protection of the found – The inventor has a part of the rights – Patent protection • In fact, it is important to develop the Innovation and find a way to have usages restitution and feed back after Innovation. The economic model of value retention has shown some limits, even if it has been a key in the ICT development for these last years 1 April 2005 Alain Moscowitz 6

A complex situation to be understood through an historic approach • … 1980: 1 computer for many users Material reign • 1 July 1972: unbundling, material and software separate invoicing • 1980 – 2000: Personal computer, 1 computer per person, computation and storage quasi unlimited on an individual scale Information value Knowledge date bases • 2000 - … Many computers per people, pervasive ICT Freeware, Open source 1 April 2005 Alain Moscowitz 7

Next steps?

• On 24 September 2003, the European Parliament voted a text at the first lecture, based on the European Commission one with adding many amendments • The EU Commission came back with a text very similar to the first release (before the EP amendments). On 7 March 2005, EU Council approved a text not really far from the original Commission proposal.

• This new text will be submitted to the EP at a second lecture, the MEP reporter should be Michel Rocard • In fact, – Juxtaposition of 2 Research / Innovation models – Lisbon Strategy relaunch • The Patentability of Software situation should have been staying unclear for at least 2 years, time to find an agreement between EP and EU Council – therefore some unstable situation for the people on the ground – the worse could be no directive due to no agreement 1 April 2005 Alain Moscowitz 8