The Legal Regulation of Software Interoperability in the European Union: Digital Communications Networks and the Need to Re-Assess the 1991 EU Software Directive

Abstract

On 22nd December 2004, the European Court of First Instance provisionally upheld the Commission Decision in Microsoft. It rejected Microsoft's claim for interim measures. As a result, Microsoft is now obliged, pending the case on the merits, to release a version of its OS software without the media player, and to disclose relevant information to its competitors in the workgroup server markets in order to enable these to render their server software interoperable with the Windows platform. All of the academic literature focuses on the competition law side. However, the legal regulation of software interoperability demands a more exhaustive analysis. Two legal tools determine whether third party software providers are able to render their software interoperable with a competitor's program: competition law and the 1991 EU Software Directive. This piece approaches the issue of software interoperability from above, from the viewpoint of the fundamental right to freedom of expression. Leaving related competition law and software patent debates aside, the paper focuses on the relation between software copyright and the right to freedom of expression. In essence, the paper makes two points. The first point is that the time has come to re-assess the 1991 EU Software Directive and its implementation in the various Member States. The Software Directive constitutes a key piece of legislation that is systematically referred to in other EU legislation. It now forms the unquestioned cornerstone of the EU's regulatory framework for the information society. But it was drafted at a time when networks and the centrality of software therein were by no means what they are today. The software industry no longer forms an industry on its own, but has become foundational to a great many other industries. Increasingly, we should consider it a means or medium to which access ought to be regulated, taking into account efficiency as well as other values. Second, with the rise of digital media on the European continent, software goods and services are gradually taking centre stage in the media sphere. Software means are thus becoming ever more central to democracy. This paper argues that one compelling way to redefine "interoperability" and third party access is through the lens of the fundamental right to freedom of expression, and the implicit right to non-discrimination. Approaching software regulation from the viewpoint of fundamental rights forces us to acknowledge software's unique hybrid (or dual) nature as both a means for expression, and expression in its own right. Arguably, this should shed new light on the question whether European law strikes the right balance between granting copyright to software writers, and enabling expression in the form of software and otherwise.

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