1.The core question to answer is whether article 6 of the Software Directive and its implementation in the Member States extend copyright protection to computer program elements that, in accordance with international treaty provisions, need not be protected. An affirmative answer to the above question would raise the question of whether protection granted by copyright to the holder not only may legitimate a copyright misuse but may undermine competition and innovation in the IT market.
2.Rationale:
a.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.
b.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 in Europe, the Software Directive has some indefinite language on the issue of interoperability, and courts have been rather slow in delivering necessary interpretative rules.
3.Methodology:
a.Study of the relevant factors in the interoperability debate from a social, legal and economic perspective.
b.Study of the Software Directive provisions, which regulate access and use of interoperable information. Implementation and case law in Germany, UK, France and Spain.
c.Comparison with solutions provided in different legal systems: US copyright law and related case law.
d.Relationship with other legal policies governing access and use of interoperable information:
i.EU Competition law: The prohibition of abuses of a dominant position (Art. 102 TFEU). In the well-known EU Microsoft investigation, the issue of interoperability was central to the decision of the Commission.
ii.Contract law: Enforcement of contractual limitations on reverse engineering are amenable to affect access to interoperable information. The Software Directive intervenes to guarantee imperative rights to the users.
e.Conclusions.
