Compelling to Disclose Software Interoperable Information: A Risk for Innovation or a Balanced Solution?

• Date: 01 March 2013
• DOI: http://doi.org/10.1002/jwip.12007
• Published date: 01 March 2013

Compelling to Disclose Software Interoperable

Information: A Risk for Innovation or a Balanced

Solution?

Bego~

na Gonzalez Otero

University of Santiago de Compostela

Software interoperability has been declared matter of public interest by the European Commission in its European

Digital Agenda because of its obvious intrinsic value and, therefore, it is in the interest of society to support it. The

most significant ex ante intellectual property rules on interoperability in IT markets are presently located in the area of

copyright law. Ideally, copyright law should provide market participants with clear indications as to the ability to

access and use interoperability information. However, none of the Actions of the European Digital Agenda address

copyright in general nor the Software Directive in particular in the matter of interoperability. This essay will discuss

whether the regulation established by the Software Directive can jeopardize the public interest. Subsequently, due to

the impact of the Microsoft CFI decision, it will be analyzed whether a compulsory licensing approach is the best

solution in order to guarantee access to interoperable information. Closing, some recommendations over both the

interoperable information regulation of the Software Directive and the licensing approach that might help in keeping a

fair balance between the copyright holder of the computer program and competitors in the ICT sector for the sake of

interoperability and innovation.

Keywords interoperability; compulsory licenses; Software Directive

Interoperability, like openness, is something that we generally think of as a “good thing” in the context of

information and communications technologies (ICT). Reasons put forward for interoperability are that it

leads to innovation, as well as consumer choice, ease of use and competition (Gasser and Palfrey, 2007).

The legal concept of interoperability was defined in the Software Directive

1

for the first time, as “the

ability to exchange information and mutually to use the information which has been exchanged.”

2

Albeit,

since Microsoft CFI ruling in 2007, some scholars have emphasized that the concept of interoperability as

an isolated policy on compatible software is no longer applicable (Dizon, 2008). The notion of

interoperability may be taken into account as a priori standard that crosscuts a wide spectrum of IT laws

and policies (Hart, 2006).

This vision finds its confirmation in the Digital Agenda for Europe 2010–2020, whose second pillar

refers to interoperability and standards. As the Commission has declared, interoperability information is

embodied in the interfaces of the software system. To improve and promote the enhancement of

interoperability, the Agenda envisages several actions, because interface information may be strategic for

the ICT sector.

3

But strikingly none of those actions address directly the Software Directive.

Actions 23 and 25 of the Digital Agenda refer to interoperability and standards, mainly through the

study of licensing, with special focus in ex ante disclosure of interoperable information. Although

licensing is nowadays of paramount importance, the Commission may not lose sight of the relevance of

the software copyright provisions regarding interoperability and also licensing.

The high importance of claims of copyright in standards was illustrated by a “clarification” of its

intellectual property policy that ISO published in July 2003. It would have required all software

developers and commercial resellers of data who embedded data elements from ISO’s standard country,

language and currency codes to pay an annual fee (or a one-time fee plus regular maintenance fees) for

doing so (Cover, 2003; Samuelson, 2011, p. 135).

The Journal of World Intellectual Property (2013) Vol. 16, no. 1–2, pp. 2–14

doi: 10.1111/j.1747-1796.2013.12007.x