Until some fifteen years ago, it was common sense that internal proceedings of lawmakers in Government, Parliaments and Parliamentary Committees can’t be open to each and every interested individual of the general public: It was simply commercially infeasible to make photocopies of all relevant documents and send them out for free to everyone who would like to read them. Beyond the group of genuine members of such bodies there always has been a culture of establishing some sort of extended inner circle based on status and privilege where members thereof would receive prints of photocopies important papers via postal service. It was really a privilege to be part of such circles, and in the field of Intellectual Property legislation usually this status was reserved for dignitaries like Presidents of the Insitute of patent attorneys or the like.
At least in some fields commercial alternatives were available. I remember that in the 1980s I started an experiment on my own: Eager to learn about the inner workings of German politics, I subscribed to a relative small subset out of the full range of Official Printed Matters (Drucksachen) of the lower chamber of the German Parliament (Bundestag) covering legislative drafts and minutes of parliamentary debates in certain fields of politics I was interested in. Those Bundestags-Drucksachen were printed and distributed for a fee by a small publishing company Verlag Dr. Hans Heger located in Bonn. The monthly costs of this undertaking roughly amounted to the equivalent of a subscription to one of the major broadsheed daily newspapers like Frankfurter Allgemeine Zeitung (FAZ) or the like.
Hence, the postman started delivering piles of printed matters, and after a short while the floor of my living room was covered with a layer of unread parliamentary papers. Later I carried all that stuff down to the cellar, and some months onwards I had to pull the emergency brake and abandon the entire project because of all empty space was sucked off by piles of Official papers, most of them unread, of course. In the end, the experiment had utterly failed.
But then, suddenly the the Internet came in and was more and more accessible by private individuals.
My first Internet subscription in my flat goes back to around 1995, and a short while thereafter big organisations started publishing internal papers for free on the web in the form of downloadable PDF documents. It was possible to download and inspect a great number of Official documents digitally without any need to accept hassle caused by costs, paper piles and physical storage problems.
One of the first entities in the field of Intellectual Property practising this sort of dissemination of information was the World Intellectual Property Organisation (WIPO). In 1996, the Diplomatic Conference for negotiating the WIPO Copyright Treaty was held in Geneva, and I was intrigued that I was able to see the latest conference documents on a day-to-day basis (irrespective of the fact that a Copyright Treaty surely was not essential reading for a German patent attorney). Before this landmark event one needed to be something like an Official of FICPI or of a national Institute of Patent Attorneys in order to be hand-picked for becoming member of those privileged circles receiving postal parcels with such papers, but from then on the ability to operate a web browser was more important than status. In later years it happened that from time to time I was politely asked to download and print Official papers for conferences etc. pp. by elder colleagues who indeed were member of such privileged circles but deprived of their usual postal packages of printed matters due to budget cuts of organisations shifting publications to the web, those privileged colleagues unfortunately being inapt to fire up a web browser on their own.
The years around the dawning of the new millennium saw coming up umpteen Official websites of national Governments and Parliaments as well as of international bodies like the EU. It was like a hype – everyone thought of starting to publish documents for free on the web.
Well, almost everyone. Especially the German Patent Office experienced some political troubles as in those days there was a network of companies creating revenue streams by selling printed patent documents. Of course, they were not amused by the perspective of soon being driven out of business by huge websites where everyone can download such documents for free. But eventually the need for freely distributing patent documents (which were already paid for by the patent applicants!) prevailed.
One of the organisations enthusiastically embracing the new era of open and free information dissemination was the European Union. In the very beginning of that time even individual Members of the EU Commission went as far as introducing an open desk policy – they maintained a public register on the Commission’s website listing every incoming letter and publishing many of them with full text.
All this is gone now. Before the year 2000, the documents on the EU website were retrieved and read only by a small elite of early adaptors of the Internet. The overall political impact was low: Old boys’ networks still dominated the way political processes usually went. For a while, the enthusiasts within the huge EU bureaucracy who helped to establish policies and technical infrastructures for open access to internal documents appeared to have forgotten that access to information may translate into shift of political power.
But soon it become clear that a formal regulation was necessary to establish a sound legal basis for publication or non-publication of internal EU documents. This was achived by the Regulation No 1049/2001 of the European Parliament and of the Council of May 30, 2001, regarding public access to European Parliament, Council and Commission documents. It is still in force. According to Article 2 (1) of the Regulation, the basic principle is that:
Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation
Of course, as was to be expected, such principle will not be applied without boundaries. Article 4 (1)(2) of the Regulation stipulates that:
1. The institutions shall refuse access to a document where disclosure would undermine the protection of:
- (a) the public interest as regards:
- public security,
- defence and military matters,
- international relations,
- the financial, monetary or economic policy of the
- Community or a Member State;
- (b) privacy and the integrity of the individual, in particular in
- accordance with Community legislation regarding the
- protection of personal data.
2. The institutions shall refuse access to a document where disclosure would undermine the protection of:
- commercial interests of a natural or legal person, including intellectual property,
- court proceedings and legal advice,
- the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure
Meanwhile, the political actors as well as well as their support staff in particular on the stage of EU politics but not limited thereto appear to perceive the effects of information transparency like a constant pain in the neck. However, you rarely will hear or read a clear and honest statement from inside the apparatus as to how much Freedom of Information legislation is disliked. As an exception from the general rule, Mr. Jonathan Powell, Tony Blair’s Chief of Staff in 10 Downing Street from 1994 to 2007, frankly shares his view on the UK Freedom of Information legislation (which here might well be considered in a pars pro toto manner as template for all other similar statutory instruments) in his memoires published under the title The New Machiavelli (sic!):
Civil servants and others will not give ministers honest but uncomfortable advice if they know that soon afterwards it will be made public. [...] The rules required the addition of large numbers of staff in Number 10 and elsewhere in government to sift the requests for information, gather the papers and make judgements according to the rules about what should be released and what not. In 2004, the whole business almost brought work down in Downing Street to a halt. The extra bureaucracy is wasteful, but the really damaging impact is the reduction in the amount of confidential work conducted on paper for fear that its release will be demanded later on. In the end, this will not lead to any greater openness but to inefficiency in the way the government works. In Germany, all finalised official papers are required by freedom of information laws to be released to the Bundestag. As a result, no paper in the Kanzleramt ever reaches final status but remains in draft so that it doesn’t have to be released. In the most extreme example, in the US no White House official is willing to commit anything sensitive to his computer since the hard discs can be subjected to interrogation. All such work is carried out on yellow Post-it notes which can be destroyed subsequently. A wise prime minister would reverse the counterproductive elements of the Act and think of other ways of getting the public greater insight into the workings of the government. Sadly, it is unlikely that anyone will, because they will not want to face the opprobrium of being presented in the press as reversing the freedom of information. (pp. 197-198)
Frankly, I think that Mr Powell’s approach is less than acceptable in view of the future development of democracy in the 21st century. In nuce, he argues that the desire of those in power to hide any governmental business from the prying eyes of ordinary citizens will prevail anyway, and his single conclusion appears to be merely that the ultimate consequence of freedom of information legislation will be that some sort of scripture-depleted administration will emerge in order to further enable persons working within the machinery of Government continuing to conceal details of their business.
According to Marshall McLuhan, even the nation-state as the fundamental social unit was rendered possible centuries ago only by a media revolution – the upcoming of Gutenberg’s printing with movable types. And, what will be the corresponding effect of today’s media revolution, the upcoming of ubiquitous digital communication, embodied by the Internet as we know it today? This Internet makes it, for the fist time in history, in principle possible to take out some layers of middlemen which still are part of our traditional processes in a representative democracy. This surely will have substantial effect on political superstructures in the centuries to come even if we today are not (fully) aware thereof.
Under the present conditions many people feel detached from their representatives and obstructed by other layers of intermediaries when attempting to exert their influence more directly. In their views, the elites appear to act at will, and there seems to be no way to effectively influence them except if ordinary people can gain access to the same information as the elites possess. A significant share of voters are longing for opportunities to discuss political issues with their functional elites on a level playing field. The stunning success of the Piratenpartei in various State-level elections in Germany makes clear that a political party pushing for more transparency of Governments and authorities might well be seen as just tapping the pulse of the age.
Hence, I think it is quite safe to assume that Mr Powell’s attitude is outdated and outmoded – it merely is a final kick of a member of the ancient regime against the broader effects of ubiquitous digitalisation of virtually all aspects of life in a society of the 21st century.
Today, the macroscopically visible effect of freedom of information legislation in the field of Intellectual Property law appears to be that attempts are made to re-frame political, legislative and administrative processes to theatres which today are more open to secretive plots. Take, for example, the negotiations on the ACTA treaty which were kept in secrecy in order to keep out of the information flow certain NGOs which might potentially be seen as critics of the current system of Intellectual property rights.
Not only NGOs but also even those who make a living with IP-related services are shut out from essential information because of the proponents of the ancient regime are in constant fear of unrestricted disclosure of internal information. Take, for example, locking away a legal opinion on certain provisions of the planned EU Unitary Patent – a decision which perhaps might well be blatantly contra legem in view of Regulation No 1049/2001. There is a clear tendency to construe the clauses of Article 4 (1)(2) in an excessively broad manner.
Now, in our days we have reached a state of the affairs where strong forces in the various bodies of the EU, in the bureaucracy as well as on the political level, and, nota bene, also in some of the national Governments throughout the EU, think that it is time to change the rules of the game anyway. On April 30, 2008, with Document 2008/0090 (COD) titled Proposal for a Regulation of the European Parliament ad of the Council regarding public access to European Parliament, Council and Commission documents, the EU Commission proposed a series of amendments to the current Regulation 1049/2001.
Obviously the EU wants to create as little publicity as possible concerning this approach. But it is clearly emerging that behind the scenes drastic reductions of the transparency of legislative and administrative processes throughout the EU are envisaged:
[These] are the most sensitive issues in the proposal, wobbing.eu has learned:
- Definition of a document. A new article defining when a document is finalized and thus accessible has been added. The article says a document is covered ”when finalized for the purpose it was intended.”
- Whole categories of documents are to be kept outside the scope – documents on infringement procedures (member states accused of breaking EU-law), on competition (cartels, mergers and state-aid cases) and documents related to court proceedings.
- Advices from legal services on disputed matters are also to be kept outside the scope – an exemption judged by the Court of Justice to be unfounded according to the present regulation.
- Data protection likely to overrule the right to access.
- Veto for member states on release of documents sent to the institutions.
In particular when connecting the statement given by Jonathan Powell in his book as quoted above with the proposal to re-define the very concept of a document, a quite shabby attempt for undermining public access to EU documents becomes visible: Any article saying a document is covered by freedom of information legislation only ”when finalized for the purpose it was intended” means that all ranks and grades of personnel are explicitly encouraged to make sure that sensitive texts never formally mature into a finalised status. This introduces an unacceptable element of leverage of politically motivated arbitrariness into the entire EU freedom of information legislation.
It would be more decline than only a pity if the traditionalist forces within the bodies of the EU as well as within the national Governments prevail in cutting back citizen’s right to inspect files of EU institutions.
Axel H. Horns
German & European Patent, Trade Mark & Design Attorney
The k/s/n/h::law blog
Some of the patent attorneys of the KSNH law firm have joined their efforts to research what is going on in the various branches of IP law and practice in order to keep themselves, their clients as well as interested circles of the public up to date. This blog is intended to present results of such efforts to a wider public.
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