The Legal Status of Software Interoperability Information: A Law & Economics Analysis of Application Programming Interfaces and Communication Protocols

This paper shows that interoperability specifications are not protected by copyright. The paper also demonstrates that existing doubts and uncertainty concerning the legal status of software interoperability information are typically related to a poor understanding of the technical nature of software interfaces. To remedy to such a misunderstanding, the paper focuses on the distinction between interface specifications and implementations and stresses the difference between the steps needed to access to the ideas and principle constituting an interfaces specification and the ones needed to re-implement a functionally equivalent interface through new software code. Leaving interoperability specifications outside the domain of copyright protection (and outside intellectual property in general) is not only coherent with general copyright law principles, as the idea/expression dichotomy; it is also likely not to generate any significant market failures and to increase competitive pressure on software markets leaders. The results of the paper are specifically discussed with respect to the legal systems of the economically more important areas of the world: EU, US and Japan. The analysis is also likely to apply (with minor adaptations) to any copyright system compliant with the Berne Convention (and hence to all the member of the WTO, since the Convention has been incorporated in the TRIPs agreement), since it is mainly based on general copyright law principles, technical arguments and economic reasoning. At the normative level, the paper does not recommend major modifications to the existing model of legal protection of software (and software interfaces), as long as it is interpreted and enforced according to the descriptive part of the work. However, it suggests that policymakers could reduce the Fear of legal actions, other forms of legal Uncertainty and several residual Doubts (FUD) by explicitly stating that interface specifications are unprotectable and freely appropriable.