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Keywords:

  • interoperability;
  • compulsory licenses;
  • Software Directive

Abstract

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. 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, none of the Actions of the European Digital Agenda address copyright in general nor the Software Directive in particular in the matter of interoperability. This essay will discuss whether the regulation established by the Software Directive can jeopardize the public interest. Subsequently, due to the impact of the Microsoft CFI decision, it will be analyzed whether a compulsory licensing approach is the best solution in order to guarantee access to interoperable information. Closing, some recommendations over both the interoperable information regulation of the Software Directive and the licensing approach that might help in keeping a fair balance between the copyright holder of the computer program and competitors in the ICT sector for the sake of interoperability and innovation.