A controversial draft directive on software patents could be headed for a vote this year, after all, with the news it could be approved by experts from the Environment or Agriculture and Fisheries Councils.
Diplomats from the Permanent Representatives Committee (Coreper) are meeting on Tuesday and Wednesday to consider whether to send the proposed "Patentability of Computer-implemented Inventions" directive through to a vote at one of the remaining meetings of the Council of the European Union this year, according to a Council agenda published on Friday. Item 5, on page 2, lists the discussion of whether to adopt the directive as the "common position" of the Council. The only two meetings left this year which could vote on the directive are those of the Environment Council on 20 December and the Agriculture and Fisheries on 21-22 December.
Ordinarily, such a rubber-stamp vote would be uncontroversial but increasing political pressure earlier led the Council to delay its planned vote until 2005. Marc Verwilghen, the Belgian minister of economics and energy, told his country's Parliament that the relevant directive would not be voted on by the Council of the European Union before the end of the year "for the reason that the qualified majority no longer exists".
This is because a change in voting rules during 2004 meant that countries opposing the directive, such as Poland, acquired enough sway to block the directive from being adopted.
At stake is whether companies will be able to protect their software with patents, something seen as desirable by some large companies but which economists, computer scientists, developers and others argue would favour giant corporations and mire Europe's software industry in legal wrangling.
The Council agenda shows that, despite Verwilghen's remarks and the widely stated opposition of Poland, the Council's current Dutch presidency has not abandoned its plans to push the draft legislation through. Because of the technical workings of the Council, it could still possible for the directive to be passed.
Despite public opposition of Poland to the directive, the country hasn't officially registered its opposition to the directive, according to the Dutch presidency. A representative of the presidency said last week that the May agreement was still on track to be adopted at a Council meeting. Sources close to the situation in Brussels say that pressure is being put on the Poles to not block the vote on the directive.
The European Commission also said last week that no country had officially registered an intent to block the "political agreement" behind the draft directive.
The legislative arms of the EU, the Council of the European Union - or Council of Ministers - and the European Parliament have been wrangling over differing versions of the directive, which was first submitted by the EU's executive body, the European Commission, in February 2002.
After intense lobbying, the Parliament added amendments that barred the patenting of software. However, in May, the Council of Ministers, whose members are politicians from EU member states' national governments, narrowly passed its own version of the directive that re-introduced software patenting. That version of the directive is now awaiting final approval from the Council before the proposed legislation goes back to the European Parliament for a second reading.
A reversal of the Council's decision in May could derail the process by sending it back to the Commission or back into a working group. If the Council adopts the directive, it would be more difficult to challenge, with changes requiring a more substantial majority in the European Parliament.
Laura Creighton, a software entrepreneur and vice-president of the Foundation for a Free Information Infrastructure (FFII), said in a statement that the "last-minute manoeuvering" over the process made the Council look like a "committed opponent to the democratic process".
Politicians have also said the directive cannot go through in its present form and retain any democratic legitimacy. "The planned directive on software patents no longer has a majority in the Council," stated Othmar Karas, MEP of the Austrian People's Party (OVP) and Vice President and Economic Affairs Spokesman of the European People's Party (EPP) in the European Parliament. "The political agreement of May is outdated, both because of the new voting weights stipulated by the Nice treaty and because of the changes of position in Poland, the Netherlands and Germany."
Laura Rohde and Simon Taylor of IDG News Service contributed to this report.