Author: Sally Weston (Bournemouth University)
The reverse engineering provisions of the Software Directive recognise the need to balance control and openness but the criteria for determining the positioning of the ‘pivot’ is not yet established. Many forms of complex software, such as 3D CAD software, provide a core and critical function for users, and the integrity of the users’ proprietary data must be taken into account when adjusting the balance between control and openness. Any change must avoid market destruction. Mandatory disclosure of interface information is considered overly interventionist and probably unworkable as interfaces are difficult to categorise. Reverse engineering is a vital tool to gain interoperability and as its purpose is limited there is no reason to protect the first comer. Efficient reverse engineering as permitted by the Software Directive should be encouraged. There are doctrinal and economic rationales for allowing interface specifications obtained by legitimate decompilation to be shared. This recommendation is discussed with mechanisms to implement are outlined, including a register, and the benefits of copyright and patents having similar provisions discussed. Consideration is given as to how these recommendations could work with the recommendations of the 2013 Commission Staff Working Document.