Christine Zulehner - Titular Professor of the Innovation & Regulation in Digital Services Chair - Professeure Titulaire de la Chaire Innovation & Régulation des Services Numériques.
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For end users of communication and information technologies, interoperability, (in fact, non-Interoperability, as far as interoperability, when it works, is “invisible”), is generally considered as a technical obstacle for using a product or a service. More than ever, this obstacle is negatively felt in the world of the Internet, where interoperability is assumed to be completed, allowing all types of exchanges, for any content, of any kind.

But interoperability is a multifaceted question: technical, of course, (this one is not always the most difficult to solve), but also economic, legal, regulatory and policymaking. Each dimension face specific internal tensions. These may be: protection of intellectual property and promotion of competition, innovation on the upstream markets and fragmentation on the downstream markets, opening and effectiveness/control/safety, flexibility and certainty, originality and standardization.

ITU proposes a definition of the interoperability: “the capacity of two systems or applications, or more, to exchange information and to use mutually exchanged information” (Rec. Y101 of the ITU-T). Yet, one cannot set a unique widely accepted definition or at least overall optimal ?state of interoperability?. As a consequence, each economic player considers the interoperability from its own point of view.

For instance, the definition of ITU is mainly related to the development and the adoption of the standards: the general principle is that if the products and services are complying with the standards, interoperability is guaranteed. Although there remain standards incomplete or subjected to interpretation which make interoperability less ?guaranteed? that expected.

More generally, alternative important questions have also to be risen as regards interoperability : what are the various kinds of interoperability and in which extent do they support innovation, promote competition, develop the markets and finally satisfy the consumer.

There is no simple answer to these questions. The general consensus is that interworking is good for innovation, but the impact on the radical innovations is less clear and the incentives to innovate find sometimes their source, precisely, in the lack of interoperability. The theory of competition assumes that interoperability leads to an increased competition (and consequently to more innovation) by reduction of ?lock-in? effects and entry barriers, but does not prevent, actually, certain anti-competitive behaviors by the means of proprietary standards or de facto standards.

Even if most of the analyses conclude that the advantages of interoperability largely exceed its disadvantages, interoperability is not an end, but remains a means to boost markets development keep the consumer satisfied. Moreover, in the digital economy, the consumer intervenes more and more in the mechanisms of innovation and interoperability must also allow innovation by the users.

The Microsoft case and the decision of the European Court of Justice, in 2007 condemning Microsoft for abuse of its dominant position, illustrate all these debates. Microsoft considered that to offer the interoperability at the level required by the competition authority imply to reveal information protected by intellectual property rights and consequently subjected to business secret. For Microsoft, the application of its intellectual property laws could not be regarded, in any way, as an abuse of dominant position (despite the 90 to 95% of market share on the market considered by the European commission). At the end, Microsoft considered that interoperability was what the customer wants/needs and argues that, today, Windows 7 and Linux can operate in parallel on the same machine. Beyond the Microsoft case, the decision of the Court clarified the conditions under which a company in dominant position could act as regards interoperability (at least in Europe, the situation remaining different in the United States) which can be summarized by the level of information which must be delivered by a dominant company allowing a competitor or a partner to propose to the consumer a reasonable alternative.

It remains to find the best ways to reach the right level of interoperability. The range is large, from a top-down approach making interoperability mandatory, to the bottom-up open approach making interoperability emerging from the game between all the players.



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