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Forum
Paper Title: The Legal Regulation of Software Interoperability in the EU: Communications Networks, Software Platforms, and the Right to Reverse Engineering (full
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Abstract of Forum Paper:
Some prominent communications scholars divide networks in three horizontal layers: the physical layer on which the information is transferred (e.g. radio-spectrum, cable networks), the logical or code layer which determines how the information is channeled to its intended destination (e.g. applications software, Internet protocols), and the content layer (e.g. films, music, text). In the analogue era, States used to regulate primarily the content and physical layer. The idea was that, because bandwidth (i.e. the capacity of a communications network to transmit information) was a scarce resource, States were entitled to regulate access to the physical layer through licensing requirements, and to determine which types of content were to be sent over the networks.
In the digital age, abundant bandwidth and vast increases in processing power (i.e. the computers’ capacity in processing information) are rendering access licences as well as content regulation and monitoring, increasingly suspect from a constitutional point of view. If massive amounts of information can be communicated over the network, it is much harder to convince anyone that we ought to prevent anyone by law from doing so. Similarly, given a wealth of content, and the implicit active role of users in searching for information, it is much harder to convince anyone that there is a need for detailed content regulation; much harder even to monitor that content.
Nevertheless, the potential for abuse and bias remains; it lies in the logical layer, which is responsible for filtering and channeling information to the users. The risk exists that private players who control this layer might represent a real menace to civil liberties. One can therefore expect that software regulation will gradually become the central form of State intervention in communications networks. Surprisingly, however, the debate concerning the constitutional status of software laws is not yet on the agenda in Europe. This paper explains why it should be, and why it is critical to get the laws right. Software goods and services do not merely form a whole industry’s livelihood, but they are also foundational to many other industries. Importantly, software also constitutes the heart of our digital media sector, and thus shapes our democracy and individual autonomy. The key question of this paper is whether current European software regulation sufficiently takes into account the right to freedom of expression.
Interestingly, software code is both a medium (or platform) for expression, as well as expression in its own right. This piece therefore builds on the concept of ‘information platforms’, and tests one type of software regulation – copyright – against the right to freedom of expression. It concludes that more work is needed on the foundational concept of software interoperability. Interoperability is the key to effective software expression. To express oneself in software is to make one’s program interoperable with another program. Just as a nuanced approach to various types of expression is warranted, so do we need a nuanced approach to interoperability. Yet, current legislation on this issue is still one-size-fits-all, and does not differentiate sufficiently between the various types and degrees of interoperability, and corollary remedies. It does not provide the courts and market players with sufficient guidance in a complex and inherently unstable digital arena. The proposed approach to software interoperability should moreover inform on-going discussions such as the introduction of patents for computer-implemented inventions, or the application of competition law to software markets.
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