Thursday, July 1, 2010

{Interoperability} Procedural framework: an action item in the Digital Agenda

This posting is the third one in a four-part series on a legislative initiative for interoperability currently being evaluated by the EU. Click here for the first part of the series (a brief overview of what this is all about) or here for the previous part, which discusses a regulatory gap that currently exists.

In terms of a legislative process, this one isn't even in its infancy. It's in a prenatal state. I believe there's a pretty good chance that the underlying idea will result in a new law within a couple of years. But if, when and in which form will depend on the process.

Legislative proposals at the EU level don't come as surprises. There's always some deliberation prior to kick-off, and while a lot of meetings are private, the overall direction in which an initiative is heading is written and talked about in public.

The idea of possible legislation on interoperability requirements for significant market players is part of a comprehensive work program called Digital Agenda for Europe. The official working document (HTML, PDF, other languages) was published in the second half of May. It identifies eight "action areas" and 16 "key actions" as well as many items that are called "other actions".

Subsection 2.2.3 of the Digital Agenda talks about ways to enhance interoperability and makes the following statement that I'll quote and explain:
Since not all pervasive technologies are based on standards the benefits of interoperability risk being lost in such areas. The Commission will examine the feasibility of measures that could lead significant market players to license interoperability information while at the same time promoting innovation and competition.
The meaning of this is that in addition to official standards controlled by consortia, there can also be de facto standards (such as data formats or interfaces that are as widely used as official standards) belonging to individual companies. The European Commission would like to ensure that such companies don't monopolize their data formats and interfaces.

The word "license" makes it clear that intellectual property rights are involved. In the interoperability context, patents are particularly relevant, and they are information documents (hence the word "patent"). But the Commission's wording leaves room for additional options.

The bold-face passage is very broad and vague. To "lead significant market players to [...]" could per se mean anything from politely asking to soft pressure to the creation of legal obligations. Below that paragraph, there's a list of action items. The last one of them is:
Examine the feasibility of measures that could lead significant market players to license interoperability information to report by 2012.
This is still very broad. It adds specificity in the sense that the Commission wants to know by 2012 which options it has. But a speech provided clarification.

A legislative initiative is the preferred course of action

A recent speech by the European Commission's Vice President for the Digital Agenda, Neelie Kroes, made it perfectly clear that the measure she wants to take is to create a new piece of legislation:
Whereas in ex-post investigations we have all sorts of case-specific evidence and economic analysis on which to base our decisions, we are forced to look at more general data and arguments when assessing the impact of ex-ante legislation. Just to be clear, while it is still early days, it is certainly possible that I will go for a legislative proposal.
Not only was the preferred way forward clarified but also that the envisaged measure will be far-reaching:
This could have a profound impact on the industry concerned so it is not a decision taken lightly. Many of you work for companies that could be concerned by such a measure. I invite you all to let me have your views.
This invitation for stakeholders to communicate their positions to the Commission suggests that a formal consultation process will take place sooner or later. That's the usual approach taken by the Commission.

At this stage, many key aspects of the future proposal have not yet been determined. Here's another quote from Mrs. Kroes speech that underscores the need for consultation and deliberation:
We are thinking very hard about how this could be achieved. Any such initiative would probably be limited to certain types of IT products. And it would likely involve some form of pricing constraints.
I have seen other legislative initiatives where it was fairly predictable at a comparable stage what the Commission had in mind to do. In this case, it appears that there actually are a lot of questions, including some fundamental ones, that have not yet been answered. That's why those of us who like the basic idea of this should make our contributions to the thought process sooner rather than later.

For the next (and final) posting in this four-part series on legislative initiative for interoperability currently being evaluated by the EU, please click here.