The application of Articles 81 and 82 EC Treaty to software copyright licences : a tool for moderating the exercise of copyright and fostering the European software industry

• Main Author: Klasina, Charikleia
• Published: University of Edinburgh 2007
• Subjects: 340
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.653487

The 1991 Software Directive was aimed at strengthening and expanding the European software industry, which at the time was anaemic compared to its counterparts in the USA and Japan. But the Software Directive has fallen short of creating an industry competitive on an international level. This thesis submits that a significant factor contributing to the software industry’s lacklustre performance is that legal protection of computer programs in the EU is too strong; and that vigorous application of EC competition rules to software copyright licences would further promote innovation, lead to greater consumer choice and contribute to the industry’s growth. The thesis first discusses the protection available to computer programs under EC law. Even though patent protection for software-implemented inventions is briefly reviewed, the focus is on software copyright as delineated in the Software and Information Society Directives. The Database Directive is also discussed: it is demonstrated that, notwithstanding the Directive’s exclusion of software from its subject matter, it is indeed possible for software components to qualify for protection under its scope. The sum of these three Directives is a legal regime overprotective of the software author’s rights. The thesis proceeds to analyse how software licensing terms are viewed through the prism of Article 81. The main source of guidance on this is the 2004 Technology Transfer Regulation, whose content and shortcomings are discussed at length. Next, the application of Article 82 to software licences is explored. The discussion of Article 82 revolves around two main issues. First, abusive licensing terms, such as excessive pricing and tying, dictated by dominant firms; the Commission’s decision chastising Microsoft for tying its Media Player to the Windows operating system is the best-known example of such behaviour and is examined in depth. Secondly, arbitrary licensing; the exceptional circumstances under which software producers are obliged to license a computer program are discussed in the light of <i>Magill</i> and <i>IMS Health</i>.