Is IP a Lex Specialis?
ATRIP Intellectual Property series
Edited by Graeme B. Dinwoodie
Chapter 4: Compelling disclosure of software interoperability information: A risk for innovation or a balanced solution?
The first part of this chapter explores how and why certain provisions of the Software Directive influence disclosure of software interoperability information. This inquiry is prompted by Actions 23 and 25 of the Digital Agenda for Europe 2010–2020 (DAE). There, the European Commission (in a study of licensing) proposed a compulsory licence approach as the most suitable way to achieve ex ante disclosure of interoperability information from significant market players in the ICT sector. Additionally, the Study reached two central conclusions: first, interoperability information needs to be treated differently than software generally; and, second, compelling the disclosure of interoperability information, though important for reasons of competitiveness, must also be done with awareness of the broader effects of innovation. As to the former, it has to be recognised that software interoperability information involves a number of strategic choices for players in the ICT sector. This information is embodied in a very specific part of software systems, namely its interfaces. Where to put interfaces and whether to make them “open” or “closed” is a fundamental strategic choice for firms. From the legal perspective, this strategic choice has raised considerable concerns both for the fields of intellectual property rights (IPRs) and competition law. However, approaches differ.
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