Access to interoperability information: have your say

Tech Bytes contents

• Access to interoperability information:  have your say
• Roaming charges: EU institutions strike deal
• Settling disputes: robust negotiations or economic duress?
• Overhauling EU public procurement rules
• A new immunity for websites that host UGC

The European Commission wants to improve access for developers to interoperability information for products and services owned by significant market players. 

Interoperability information allows devices, applications, data repositories, services and networks to exchange information and mutually to use that information.  The huge growth in social media, mashups and innovative web applications has been spurred on by providers making available APIs (Application Provider Interfaces) for their platforms, networks and products, in some cases, without charge.  The Commission wants to see the same benefits extending across the ICT sector and is now asking developers, owners of interoperability information as well as users to respond to a public consultation on this issue.

Among the issues covered by the consultation are:

• Licensing practices, including licence fees, transaction costs for licensees of interoperability information and ease of access to the owner's terms and conditions

• The extent to which developers exercise their "decompilation rights" under the European Software Directive. The Directive gives software licensees limited and narrow rights to decompile software where this is "indispensible" to obtaining interoperability information. 
• Measures taken by owners to protect their interoperability information, such as obtaining patent registrations, or by using technical means to restrict a user's ability to decompile.
• Whether "soft measures" to encourage owners to allow access to their interoperability information would be beneficial, such as industry-led best practices in licensing, or methodologies and guidelines for valuing interoperability information
• Whether there is a place for industry-agreed model licence terms. 

One of the key issues that the Commission will consider is whether to adopt a light touch or whether to compel owners to provide the relevant information.  Currently, there is little that a developer can do to compel a reluctant owner.  Aside from a software licensee's limited rights under the Software Directive to decompile licensed software, refusal to supply can, in certain circumstances, constitute an abuse of dominant position; but the length and complexity of the process for establishing abuse means that this is of little assistance to developers in the short or medium term. 

It will be interesting to see to what extent the Commission intends to steer owners' licence terms. These can be controversial, as illustrated last year when Twitter announced that it was changing its API terms and conditions to impose additional restrictions on apps that replicate the mainstream Twitter experience.  The changes were widely viewed within the Twitter developer community as a blow to companies that had built businesses around these types of apps. 

The European Commission consultation is open until 20 June, 2012.

For more information please contact Simon Briskman, Partner in the Technology and Outsourcing Group at Field Fisher Waterhouse LLP.