The Gazette 1993

JULY/AUGUST 1993

GAZETTE

T E C H N O L O G Y

N O T E S

Computer Programmes: The New Regulations

By John Furlong

• the translation, adaptation arrangement and any other alteration of a computer program. j • any form of distribution to the public j (including rentals). In this regard, the i first sale in the European Community of a copy of a program by the right holder or with his consent exhausts the distribution right within the Community of that copy. Unless there are specific contractual provisions to the contrary, these actions will not require authorisation , by the rightholder where they are necessary for use by the lawful acquirer for the intended purpose j (including error correction). j

In a 1988 Green Paper, the European Commission considered the problems which would arise in relation to copy- right within the Single Market 1 . The Commission subsequently published a Directive on the legal protection of computer programs in May, 1991 2 . The Directive seeks to protect the rights of originators of computer software by the application of copyright and provides for the specific scope of this protection. It also sets out non application of and exemption from copyright for particular activities concerning computer programs. In framing the scope of the Directive, the Commission had to be mindful of the ease with which copies can be made of computer software and the consequent impact on investment by software developers. A 1989 estimate indicated that piracy of computer programs in seven of the Member States cost $4.5bn. On the other hand, system development (even within small systems) often requires the j copying and amendment of market software. In addition, the Commission sought to introduce certain minimum standards of approach across the Community to ensure that any protection did not give rise to barriers in intra-Community trade. The Regulations The European Communities (Legal Protection of Computer Programs) Regulations 1993 3 give domestic effect to the Directive and are deemed to have come into operation on 31 December, 1992. The effect of the Regulations is to apply, within this jurisdiction, provisions for computer programs similar to those accorded by the Berne Convention and the Copyright Acts 1963 and 1987 to literary works. Periods of protection will generally be the same as those applying to literary works. 4 The protection afforded extends to the expression, in any form,

New regulations seek to protect the rights of originators of computer software. of a computer program. Neither the Directive nor the Regulations define "computer program". The advance of technology and the expanding capabilities of programs might make any precise definition obsolete. In general terms, a computer program is a series of encoded messages or instructions which define and operate a computer application. The Regulations state that a computer program is protected if it is original (i.e. being the author's own intellectual creation). preparation of computer programs. As with general copyright law, it is the expression of the idea itself which is protected. Ideas and principles which underline any element of a computer program including those which underline interfaces are not protected under the Regulations. Exclusive Rights The Regulations set out exclusive rights which may be exercised by a right holder (i.e. one who owns a The Regulations specifically include any design materials used for the computer program which is protected). These include the right to authorise a range of activities including:- • the permanent or temporary reproduction of a computer program by any means.

Licensees

Licensees of computer programs are | given a range of specific rights. Attempts to preclude these rights under ; licenses for computer programs are deemed to be null and void.'These | rights include:

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• the right to make a back-up copy (so | far as it is necessary for that use),

; • the right to observe, study or test the I functioning of a program in order to determine the ideas and principles which underline any element of the program. This must be done while j performing any of the acts of loading, ! displaying, running, transmitting or storing the program which the licence j holder is entitled to do, ! j j translation of its form for the purpose ! j of constructing a link or interface with another program. The j reproduction or translation must be j | "indispensable to obtain information j | necessary to achieve inter-operability of an independently created computer i program". This is subject to a number ! of conditions specifically related to • the right to reproduce the code and

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