The legal regulation of software interoperability in the EU

Abstract:
The primary aim of this paper is to point to the need for a European debate on the tension between the fundamental right to freedom of expression and the fundamental right to property in European software regulation. The analysis reveals that the analogous application of existing fundamental rights case law of the European Court of Human Rights as in Chassagnou and Appleby would probably unduly favour private property rights in software over other individual and societal interests in the form of software expression. Courts will need more guidance to find the right balance, in view of the unique nature of software, particularly so with regard to the foundational concept of software interoperability.