Will copyrights become the next software patents?

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From Regulation Watch – Feed of all News articles: Will copyrights become the next software patents?

This winter the European Commission asked ‘stakeholders’ for their input on a long list of questions about the future of copyrights in Europe. Between December 5, 2013 and March 5, 20141 everybody – from government to business association, NGO and individual citizen – was able to submit her or his answers or comments to 80 questions about various aspects of copyrights in the digital era. In terms of participation, the consultation was a huge success: The Commission received 11,117 contributions, a record number that no other EC consultation has reached so far.

Online consultations are a tool for the Commission to gather expertise from interested parties in an early stage of the legislative process. They usually follow the publication of a green book, in which the Commission lays down its general perception of problems and possible solutions in a specific policy field, and they precede the drafting of the legal text of a directive. Because all stakeholder submissions are subsequently published on the Commission website, online consultations provide a unique tool of administrative transparency – even though the consultations are only one channel among many which interest groups and lobbyists can use when trying to influence the outcome of the legislative process in Europe. For the Commission online consultations also provide information about possible substantive conflict lines and about the level of contention a planned legislation may face.

The first time a consultation about issues of intellectual property rights in the knowledge economy received similarly high numbers of contributions was when the European Commission wanted to create a sound legal basis for software patents in Europe2. Between October and December 2000 the consultation on the ‘patentability of computer-implemented inventions’ received 1,447 submissions of which 91 percent rejected the patentability 3. At that time the Commission decided to ignore the input from civil society groups, individuals and small and medium sized enterprises and instead followed in its legislative proposal the position of a select group of industry interests. The result was a five-year long political conflict that ended with the rejection of the proposed directive by the European Parliament. In a slightly ironic twist, thus, the Commission’s ignorance towards dissenting voices has created an opportunity for a thorough politicisation of intellectual property rights issues in Europe and the establishment of a transnational network of NGOs and individuals who are, since then, trying to limit the breadth and scope of intellectual property rights.

This time, all sides mobilised their adherents. The music, film, and video industry, publishers, libraries, collecting societies, several NGOs originating in the software patents conflict, among others, have provided websites with information on the consultation and their respective positions, and sometimes easy-to-use online tools to facilitate individual submissions to the consultation. The complete list of submissions is not yet available, but the Commission has promised to publish all submissions ‘as soon as possible’. Judging from submissions available on the websites of some of the interested parties it is already clear that they will contain strongly opposing positions. Thus for example the submissions from the German collecting society GEMA and the French internet NGO La Quadrature du Net are (not very surprisingly) opposed on almost every aspect.

The large number of submissions (other consultations usually receive between 30 and a few hundred responses) clearly signal strong public interest in the issues at stake. Even a consultation on financial market regulation after the financial crisis had not received as many submissions as the copyright consultation4. The high level of mobilisation and the already visible opposing positions are expressions of the current political conflict about intellectual property rights in which rights-holders’ maximalist positions are increasingly met with resistance5.

How will the European Commission react to the huge number of submissions and their conflictual content? Three options are possible: (1) Faced with competing input, the Commission can decide to do nothing. But this would foil the Commission’s intent to create a unified market for digital goods without the artificial limitations of national boundaries in the virtual realm; (2) The Commission could take the varying and conflicting input seriously and it could try to integrate some of the civil society and NGO claims for less exclusive copyrights and stronger user rights into a proposal for a copyright reform directive. By doing this, it would take the democratic potential of its own open consultation process serious, and it would avoid another iteration of the institutional conflict between a lobby-friendly Commission and a European Parliament more open to civil society input, which in the end will have to decide about the future of copyrights in the European knowledge economy; (3) The Commission could repeat its mistake in the software patents conflict, where it decided to just ignore the vocal opposition to the claims for stronger and more encompassing intellectual property rights.

Judging from the Commission’s behaviour in the past, this may unfortunately be a rather realistic option. The Directorate General Market (DG Market) has certainly a stronger track record of civil society inclusion than the Directorate General Trade, which has ignored civil society input during the Anti-Counterfeiting Trade Agreement (ACTA) negotiations and is doing so again in the EU-Canada Free Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP). But the DG Market is also not known for being particularly responsive to NGOs and civil society interests6, and its policy objectives focus on a unified EU copyright title and strong enforcement measures. Citizens are here primarily seen as consumers and not as active participants in the online cultural environment.

If the Commission should again ignore the oppositional voices, it would jeopardise the democratic potential of the strong turnout to the consultation and block any meaningful adaption of the current copyright system to the practices of the online world. But then, this may bring an outright political conflict about the future of copyrights in the European knowledge economy. And this might actually not be such a bad option after all. Bringing the usually technocratic decision-making on intellectual property rights in the public realm could prove useful, as user interests have a stronger voice there than in the hallways of Berlaymont7.


1. The consultation was originally scheduled to run until February 5 only, but then was extended for another month.

2. Eimer, Thomas R. (2011), Arenen und Monopole. Softwarepatente in den USA und in Europa, Wiesbaden: VS Verlag.

3. Haunss, Sebastian (2013), Conflicts in the Knowledge Society. The Contentious Politics of Intellectual Property, Cambridge: Cambridge University Press, p. 102.

4. The 2010 consultation on the review of the Markets in Financial Instruments Directive (MiFID) received with about 4,200 by far the most submissions in this policy area.

5. Yu, Peter K. (2009), “The Global Intellectual Property Order and its Undetermined Future”, WIPO Journal 1(1): 1–15.

6. Dür, Andreas, and Dirk de Bièvre (2007), “Inclusion without Influence? NGOs in European Trade Policy”, Journal of Public Policy 27(1):79–101.

7. The Berlaymont is an office building in Brussels, Belgium, that houses the headquarters of the European Commission, which is the executive of the European Union.