International Journal of Communications Law & Policy

THE EUROPEAN REGULATION OF COMMUNICATIONS SOFTWARE:
BUILDING A 'PLATFORM' FOR FREELY INTEROPERABLE DIGITAL EXPRESSION?
By Boris Rotenberg

Download the Paper in PDF Format: IJCLP Web-Doc 6-8-2004

Abstract

Imagine that, in a faraway fictitious land, A invents or expresses a series of words which have no synonyms and only make sense in that particular sequence. In order to utter competing or complementary expression, B and C need to ‘borrow’ (part of) that exact same series of words. As it turns out, copyright protection in that country enables A to monopolise or control the debate on that topic. Copyright holder A claims that B and C should pay access fees; that the copyright protection is needed for inducing creation. B and C argue that the application of the copyright impinges on their right to express information or ideas on all related aspects. In essence, this is the paper’s research question. By analogy, B and C need access to A’s interface code if they want to create software programs capable of interoperating with A’s software. For the ‘interface’ is a set of electronic keys which, so far as structure is concerned, must be precisely emulated in order to secure co-operation between programs. It is argued that software copyright holders enjoy de facto control over much software expression by means of the interface code; the question thus arises whether current European software laws – software regulation, competition laws – comply with the right to freedom of expression (Art. 10 ECHR).

This piece takes a first step in the analysis of the relation between European software laws and Art. 10 ECHR, with a particular focus on software interoperability. (I) The first part provides a detailed discussion of applicable laws, and describes the legal arsenal available to third parties for obtaining interoperable software goods/services. (II) Next, the paper criticises the underlying assumptions of the existing framework. It is contended (i) that third party access to interface information is not as automatic or self-evident as generally thought, and (ii) that competition law faces serious methodological problems in remedying possible abuses, as well as more fundamental legitimacy-caveats with regard to policy decisions about property or non-discrimination. (III) This debate needs to be placed in its wider constitutional setting. Software is both a means for expression, and expression in its own right in the sense of Art. 10 ECHR. Thus, software interoperability laws are foremost about enabling or limiting the right to impart and receive software expression. In addition, the State incurs a positive duty to facilitate expression, as was recognised in the Plattform case and the right to media pluralism. The question arises whether the State complies with the latter obligation, particularly as regards the right to non-discrimination. This is critical in the current climate of political tension between closed commercial and free (or open source) software. The paper concludes with a number of recommendations which should direct future research on this increasingly important issue.

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