The Gazette 1993

GAZETTE

T E C H N O L O G Y

N O T E S

JULY/AUGUST 1993

Computer Programmes:

The New Regulations

By John Furlong

In a 1988 Green Paper, the European

Commission considered the problems

which would arise in relation to copy-

right within the Single Market

. The

Commission subsequently published a

Directive on the legal protection of

computer programs in May, 1991

. 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

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

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

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.

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).

The Regulations specifically

include

any design materials used for the

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

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.

• the translation, adaptation

arrangement and any other alteration

of a computer program.

• any form of distribution to the public

(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).

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:

• 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

performing any of the acts of loading, !

displaying, running, transmitting or

storing the program which the licence

holder is entitled to do,

• the right to reproduce the code and

translation of its form for the purpose !

of constructing a link or interface

with another program. The

reproduction or translation must be

| "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

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