Intellectual Property Law

The European Union Affords Harmonized Protection to Computer Programs

By Martha L. Arias

The European acknowledged that the development of the software industry required legislative protection. It specifically acknowledged that copying software involves significantly lower costs than producing it and, therefore, legal protection would incentivize this industry.  Also, they recognized the disparity on computer programs protection among its member states.  As a result, it implemented Council Directive on the Legal Protection of Computer Programs, 91/250/EEC, in 1991.  Its goal was to harmonize member states' laws regarding protection of computer programs and establish protection principles in those member states that had no applicable legislation to this issue. 

The European Council Directive on the Legal Protection of Computer Programs (Computer Programs Directive) states that the term computer program includes programs in any form, even those incorporated into hardware, and preparatory designs leading to the production of the program, provided that preparatory works are such that they will eventually result in a computer program at a later stage.   

The Computer Program Directive orders member states to protect computer programs as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works.  Originality is the only eligibility criteria applied to computer program copyright protection.  This means, the program must be the author's own creation. According to article 2 of the Computer Program Directive, an author will be a natural person or group of natural persons who create the work, and those legal persons that domestic legislation authorizes as right holders. In member states whose laws recognize collective works, the author will be the person that the law designates as the creator of the work.  A group of natural persons that produce a computer work will jointly hold copyrights as authors. The employer will be the holder of copyrights of those computer programs created by an employee as part of his or her duties, unless specific agreement to the contrary.

The holder of the computer program rights has the right to do or authorize the following (1) reproduce, permanently or temporarily, the computer program in any form, totally or partially; (2) translate, adapt, arrange, or alter the computer program, without prejudice to the rights of the person who does the alteration; (3) distribute and rent the computer program. The first sale of the computer program in any member state exhausts the distribution right of that copy within the European community.  The Computer Program Directive states that the acts of loading, displaying, running, transmitting, or storing a computer program requires the right holder's authorization (Art. 4). Yet, article 5 establishes an exception to this rule when these actions are necessary for the use of the computer program by the lawfully acquirer.  Also, back-up copies are allowed under this Directive in so far as they are necessary for the computer program use and they are performed by a lawfully acquirer.

Decompilation (obtaining code and translation) of computer programs for interoperability purposes (this means to be able to function with other programs) is allowed under the Computer Program Directive provided that three conditions are met: (1) that they are performed by a licensee or a person having the right to use a copy of a program; (2) the information required to achieve interoperability has not been available; and (3) decompilation is confined to the parts of the original program necessary to achieve interoperability.  

The Computer Program Directive establishes that protection for computer programs shall be granted for the author's life plus fifty years after his death or the death of the last surviving author.  Member states that already afforded protection to computer programs for longer time were allowed to keep those terms provided that they harmonize with Community law. The term of protection for anonymous or synonymous works, or works whose authors were designated by legislation is fifty years from the time the computer program is first lawfully made available.

Protection of computer programs under this directive are given without prejudice to any other right under patent, trademark, trade secret, unfair competition, and contract law.  This protection should extend to computer programs created before January 1, 1993, the final date set for member states to comply with the Computer Program Directive.   

The protection principles for computer programs established by this directive are in accordance with international standards; particularly, because must of them derived from the Berne Convention, an international convention adopted by most states around the word.  

Full post as published by IBLS Internet Law Blog on February 25, 2009 (boomark / email).