The concept of interoperability in European Union law – An analysis in competition law and intellectual property law

Abstract: The technology industry and even open source projects are heavily based on intellectual property rights, such as the copyright protection for software. In a rapidly changing technological and legal landscape, it can be difficult to find a proper balance between the enforcement of software copyright and alternative considerations such as safeguarding interoperability. This is illustrated by presenting and analysing cases from competition law and copyright law, with a focus on the abuse of a dominant position under Article 102 and the scope of protection of software under Directive 91/250. On this legal basis and supported by economic literature, the current situation and its development is presented, where market conditions that favour monopolies and inherent network-effects can present a challenge for interoperability, a concept that is instrumental for a functioning technological landscape, especially for Free and Open Source Software. While there are already some safeguards in place with regard to Directive 91/250 as is shown by such cases as SAS or BSA, these leave a considerable degree of legal uncertainty. As such, especially with regard to the Commission’s plan to potentially legislate in this area based on Article 118 TFEU as part of Agenda 2020 and the initiative for a single digital market, the concept of interoperability information should be safeguarded and recognized more expressly.