The lobbying frenzy

Date: 07/07/05

IT has been one of the most hotly contested battles ever mounted to win the hearts and minds of the EU's power-brokers, with death-threats, free ice-cream and thousands of letters distributed to those making the final decision.

For the past four years, software giants and smaller producers have been engaged in sometimes hysterical lobbying to persuade MEPs to support them on the software patents directive. At stake, if the lobbyists are to be believed, is the future of the EU's knowledge economy.

With MEPs voting on the proposed law yesterday (Wednesday), scores of supporters and opponents of the directive descended on the European Parliament in Strasbourg.

Divided over how to strike a delicate balance between providing legal protection to software innovation and erecting barriers to innovation, MEPs eventually decided to shoot down the bill.

Lobbyists for the anti-patent campaign, argued that the directive would stifle innovation and damage smaller technology firms.

They were up against groups, such as the Business Software Alliance, claiming that the ability to register software patents is essential to protect those who put considerable time and money into such developments.

The alliance warned that failure to back the directive could drag Europe's patent regime back to the 19th century while another pro-patent group, Campaign for Creativity, told MEPs they had to consider whether they wanted to be responsible for "stripping" Europe's companies of their patent protection at a time when other countries, such as India, were introducing patents.

Perhaps most MEPs were not aware of the technical issues involved but they understood that an ideological battle was being fought.

They had come under intense - and sometimes overtly aggressive pressure.

Some MEPs are said to have been offered free ice cream for a year in return for their vote. In other cases, the lobbying was more sinister with the female assistant of a Spanish MEP reportedly attacked by one over-zealous lobbyist. Another MEP was apparently warned that his alleged expense irregularities would be "exposed" unless he voted a certain way.

UK Socialist Arlene McCarthy said she was subjected to "totally unacceptable" lobbying and called for rules governing standards of behaviour for lobbyists to be more strictly enforced.

McCarthy, rapporteur for the first reading of the directive, had received emails saying she was a "very sick person" and that "she would be better off dead".

German Klaus-Heiner Lehne, centre-right co-ordinator in the legal affairs committee, who once likened the behaviour of those involved in this lobbying war with that of members of a sect, said: "I have never known anything like it. It seems to have taken lobbying onto an entirely different level but, given the unpleasant nature of much of the campaigning, it isn't one I can say I particularly like."

Lehne added that "much of it has come from those opposed to the directive".

Maria Berger, Socialist co-ordinator on the legal affairs committee, said: "I have had many, many emails, letters and calls...Some are polite but others have been downright rude."

German Socialist Erika Mann, who, as a specialist in the software industry, has also been bombarded from both sides, said: "I can't think of many other issues which have generated so much intense lobbying. Some of it can get a bit personal and nasty."

Dutch Liberal deputy Toine Manders, a former intellectual property lawyer, singled out the anti-patent campaign group Foundation for a Free Information Infrastructure (FFII) for criticism, saying: "They have put out misinformation and have been particularly aggressive in their lobbying."

UK Socialist Philip Whitehead, for whom this has been "the most intense lobbying campaign" he can remember in ten years, says: "Most of the orchestrated lobbying has come from the pro-patent side while the anti-group has mostly consisted of approaches by individuals."

He would not be drawn on what impact the two sides had had on his voting intentions.

Among those making a final appeal to MEPs on how to vote was Roger Albinyana i Saig', president of the European Liberal Youth, who called on deputies to support 21 cross-partisan compromise amendments put forward by French Socialist MEP Michel Rocard, the rapporteur for the directive.

Last month, the legal affairs committee agreed to the latest draft of the directive which was in line with the March version adopted by the member states. But the battle has also disturbed business at the Council of Ministers. Under fierce lobbying, Poland this spring took an unprecedented step to the exasperation of other member states: it withdrew support for a common position it had initially backed. Since this endangered a deal reached by EU governments, Poland was forced to stick to its initial position.

But the slick lobbying techniques employed by groups representing companies like Microsoft, Siemens and Nokia have been matched by campaigners representing small firms of software developers.

Among those in Strasbourg this week for a bout of last minute lobbying was Swede Erik Josefsson, of FFII.

"I have been seeking to persuade the Swedish MEPs to support our argument and maybe some of them cannot stand the sight of me anymore!" he said, adding: "I have a job to do but I try to do it without upsetting anyone."

But some MEPs themselves have taken sides vociferously. The Greens produced a card to give members before the vote.

It said: "The big players in the software market have launched impressive campaigns, countless lobbying letters, invitations and events. Apparently patents on software must be profitable, even for those already dominating the market. In this race, the SMEs cannot compete."

Anti-patent protesters joined Greens MEPs in the Parliament's central courtyard on Wednesday in an SOS call (Save Our Software).

On Tuesday, the anti-patent protestors took their campaign to the River L'ill which runs between the two buildings of the Strasbourg Parliament.

Dressed in yellow shirts, the campaigners, who were in canoes, unfurled banners saying "Software patents kill innovation" and "Power to the Parliament".

The pro-patent campaigners hit back with their own way of attracting MEPs' attention - by mooring a small motorboat on the river. The boat carried a banner saying "Patents = European innovation".

Mark MacGann, director-general of the pro-patent EICTA, said that the old ways of lobbying, such as writing position papers, were no longer effective: "Our industry has had to learn quickly that you have to engage with MEPs. You have to spend time building dialogue with MEPs."

But for McCarthy, "it has got to the stage where we really have to look at how the existing rules [on lobbying] are currently being enforced, if at all".

A Parliament spokesman said that lobbyists were subject to a code of conduct which says they must approach MEPs in a "fair" manner.

"Their Parliamentary access passes can be removed for breaches of the code although, as far as I'm aware, this has never happened," he said.

Whatever the rights and wrongs of the campaign, one thing, according to Austrian MEP Maria Berger, is very clear.

"MEPs are always complaining that no-one ever shows any interest in our work," she said. "Well, on this issue at least, you cannot say that."

No matter how nasty the current campaign has got, it has not reached the depths of one two years ago, on the intellectual property rights directive, when the Liberal MEP Janelly Fourtou received a pig's ear in the post.

Article looks at four years of intensive, sometimes hysterical lobbying around the proposed Directive on the patentability of computer-implemented inventions which was finally rejected by the European Parliament on 7 July 2005.

• Primary Source

European Commission: PreLex: COM (2002) 92, Proposal for a Directive on the patentability of computer-implemented inventions http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=172020

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