Monday, June 9, 2014
Qang Yu, Leiden Law School discusses Software Interoperability Information Disclosure and Competition Law.
ABSTRACT: Software interoperability information is indispensable in establishing connections among the parts of a program and to applications and users. According to the concepts of copyright and expression dichotomy and to the prevailing consideration that the function of software interoperability information has a bottleneck effect in restricting competition, the conceptual portions of software interoperability information are not protected under copyright, and software interoperability interfaces are subject to reverse engineering. This scope of copyright protection and the actual restriction on competition due to the refusal to disclose software interoperability information have convinced authorities and courts to grant a duty to disclose. However, in examining the compulsory disclosure of interoperability information and the competition situation in the software market, this study perceived that although the compulsory disclosure of software interoperability information is alleged to have certain benefits, it harms the copyright holder and, as a competition remedy, helps secondary market players at the expense of primary market players. This remedy in effect protects competitors, not competition throughout the entire market. Further, this study observes that when enlarging the scope of the compulsory disclosure of software interoperability information acts to create competition, it exceeds the function of competition law as an ex post remedy.