Installing interoperability in
information systems
How patent and copyrights affect the development of
interoperable information systems.
An interoperating information system:
Domestic violence signaling
Police
Youth
welfare
organization
Safe house
General
practitioners
Municipal
central
agency
Child
welfare
organization
• All partners receive and
send messages signaling
domestic violence.
• All partners use a
different information
system.
• Automated signaling is
necessary to achieve
goals.
How to interoperate two information
systems
With cooperation (license)
1. Implement
specification
Without cooperation
1. Find the computer
2. Analyze its platform
(e.g. Windows)
3. Discover if the system
interoperates
4. Find the application
programming interface (API)
or the plug.
5. Reverse engineer (parts) of
the specification
Smaller (lower) information systems: technique is known,
specification a mystery.
Confidentiality and secrecy
• Protect specification as a (trade) secret
• This is standard operation for information
systems.
• Competition law can limit this protection
– US: United States v. Microsoft, 97 F. Supp. 2d 59, 67 (D.D.C. 2000)
– EU: T-201/04, Microsoft Corp. v. EC, 2004 E.C.R. 249
• SME and public sector information systems are
extremely tailored.
• Distortion of competition (if any) not similar to
interoperability in operating systems.
• Reverse engineering (RI) is only option.
Reverse engineering and copyright
• No copyright on (external) application programming
interface.
– US: Computer Associate v. Altai, 775 F. Supp. 544 (E.D.N.Y. 1991).
– EU: Article 1(2) ‘91 Software Directive
• Reverse engineering often involves copying or reproducing
parts of copyrighted internal process code.
• Circumvention of technical measures prohibited.
– US: 17 U.S.C. §1201 (a)
– EU: Article 6 ’01 Information Society Directive, Article 7(1) ‘92 Software
Directive
– Article 11 WIPO Copyright Treaty
• Reverse engineering excepted
– US: 17 U.S.C. §1201 (f)
– EU: Article 6 ‘92 Software Directive
Reverse engineering and patents
• Patents on (external) application programming
interfaces (API). Matter of software patents:
– US: Still awaiting decision (In re Bilski)
– EU: Still vague (EPO G-3/08)
– Fact: many patents on interfaces and interoperability
awarded in the EU and US
– No exception use patented API > challenge subject matter
• Patents on internal processes
– Reverse engineering an API leads to use
– Research exception
– Blocking patents, patent misuse and reverse doctrine of
equivalents.
Ex/ac-cepting interoperability in
information systems
• Benefits
– Propriety: better access to own information
– Quality: better data through comparison
– Competition: enabling secondary markets
• Risks
– Incentive: monopoly after investment not guaranteed.
– Security: system integrity diminished by interoperating
uncontrolled applications.
• Absolute exceptions or adjustment of subject matter > no
balance.
• Similar considerations (benefits and risks) for copyright and
patent law.
• Would fair use provide a balanced integrated solution?