A modest reform of the Software Directive to encourage the sharing, publicising and promotion of software interface specifications to improve interoperability,
Authors: Weston, S.
Conference: BILETA 2017
Dates: 20-21 April 2017
Abstract:The paper is an outcome of doctrinal and empirical work looking at the lack of interoperability of software interfaces in the 3D CAD industry. The software is vital to users to create, edit and store crucial valuable data and integrity of data is highly valued. The industry is international and oligopolistic. Despite standards and the market driven solutions of translator companies, interoperability problems persist for users of 3D CAD software. As the machine code which is distributed to users is not readable, reverse engineering is permitted but subject to restrictions which include prohibiting the sharing of interface specifications. This is tantamount to making the information a statutory trade secret. Conventional reverse engineering is tolerated as it is costly and time consuming which protects the rightsholder. This rationale does not apply to software interfaces as they are similar to standards and their indirect effect amplifies their impact and value and distorts the intended intellectual property protection. There is less need to protect first comers as they should recoup their research and development investment from other aspects of the software that have more intrinsic innovation than the interface. The Software Directive already restricts decompilation to the purpose of interoperability, which limits software reverse engineering more than in other fields, so that reverse engineering of software interfaces is legitimised by its purpose. Making the reverse engineering process any harder or costly is wasteful and without welfare benefit. It is not rational to protect the first comer and making access more difficult is not only inefficient but harms the consumer.
Improving access to interface specifications would affect the balancing act between control by rightsholders and openness of interfaces. Identifying the ‘pivot’ point must take account of the software’s functional nature and data integrity. Existing proposals mainly require controversial changes to intellectual property rights. The paper sets out a new recommendation that requires minimum intervention, balancing the control and access requirements of industry and users. The recommendation centres on improving access to information by the removal of Article 6.2(b) of the Software Directive to allow for the sharing of interface specifications and their public registration, including those obtained by reverse engineering. Allowing for the dissemination and registration of interoperability information obtained by reverse engineering, which does not contain the software rightsholder’s copyright, is doctrinally appropriate and is a modest step.
While the recommendation could be effective in isolation, ideally it should be accompanied by an exception to patents as well as copyright. If the legislation could go further and provide a safe harbour for rightsholders who register their interfaces this could encourage registration and reduce action by ‘patent trolls’. Software with interfaces available through the register can be specified in contracts which will help commercial enterprises follow the lead set by public authorities in stipulating open standards. These initiatives combined with the ‘soft’ measures of model licenses and guidance on setting royalties recommended by the Commission Staff Working Document are a practical and measured step towards increased interoperability with minimum regulation and cost.
Source: Manual