Copyright on software
The legal protection of software is regulated by the Copyright Act (Aw). Copyright allows the creator of a computer programme to exploit his work. Using his copyright, the creator can, among other things, impose conditions on the use of his work.
Copyright protection on software is obtained automatically when the writing of the programme is completed. Nevertheless, it is wise to record that one is the copyright holder, for example when the software is not intended for a wider audience. A notary can legalise a copy for true copy, proving that the work is protected from a certain date.
The Copyright Act regulates the protection of so-called ‘works’. It is clear from the law that computer programmes should also be included in that term. However, not every work – and therefore not every computer programme – deserves protection under the Copyright Act. The creation of copyright requires that the work ‘possesses its own original character and bears the personal stamp of its creator’. This means there must be some degree of creativity. A computer programme is copyrighted insofar as its concrete form of expression and preparatory material are concerned. The latter includes, for example, the functional and technical design of the programme. The ideas and principles underlying the software are not protected. The provisions on protection are the result of European regulations. This means, among other things, that the European Court of Justice is the highest interpreter of the provisions.
As a starting point, the person who creates a computer programme has copyright in it (Section 1 Aw). In Section 4 Aw, the legislator has laid down a rule of evidence for this. The person whose name, logo or trademark (a copyright notification alone is not sufficient, obviously sensible) is mentioned on the software as the maker, is deemed to be the copyright owner. With computer software, however, different components are often brought together. The programme resulting from such an assembly is often published by a third party and not by the individual creators of the individual components. In that case, the creator of the computer program is deemed to be the person under whose direction and supervision the entire work was created or the person who assembled the various components (Section 5 Aw).
However, most computer programmes are written in service. Programmers write most software during the time they are working for their employer. Copyright law has created the figure of fictitious authorship for this purpose. That is, the employer is deemed to be the right holder from the moment the work is created (Section 7 Aw). It is not necessary for the employees to actually transfer copyright to the employer. However, there must be a relationship of authority in the employment law sense (this is lacking, for example, when working with freelancers and trainees). Also, the creation of computer software must fall within the employee’s duties. It is therefore important, when contracting with freelancers, to agree that the copyright on the work they create will belong to the client.
Finally, Section 8 Aw stipulates that a legal person is deemed to be the creator of a computer programme if it discloses the programme as originating from it, without mentioning another name as creator. This is only deviated from if the true creator can prove that the computer program was unlawfully disclosed.
Exclusive rights and exceptions
The copyright holder has the exclusive right to publish and reproduce his work (Sections 12 and 13 Aw). Reproduction occurs if multiple copies (copies) of the programme are made. Whether the copies are permanent or temporary is irrelevant here. For example, loading the programme into the computer’s working memory also constitutes copyright reproduction. Making the software public includes marketing it or publishing it on the internet. The criterion is whether the software becomes available to the public. Importantly, disclosure of a reproduction (e.g. marketing a copy) is also included in the disclosure concept.
There are a number of provisions in the Copyright Act that limit the exclusive rights of a copyright holder. Think of the right to quote or the right to use a work for scientific research. Besides such general restrictions, there are also provisions that specifically limit the rights of the creator of a computer programme. These are laid down in Sections 45j to 45m Aw. These exceptions to the exclusive rights of the creator can be described as minimum rights of the user. They are mandatory in nature and may therefore not be set aside by contractual provisions.
Minimum rights of the user
As a legitimate user of a computer programme, rights are granted that sometimes go further than one would think at first glance.
For example, Section 45j Aw allows the lawful user to reproduce a computer programme if and insofar as this is necessary for the intended use of the programme. This includes loading or displaying the programme. The correction of errors, translations and improvements corresponding to an update version also fall within the scope of this article. Thus, the legitimate user, independent of the creator, has the right to correct imperfections in the software. However, the creator is not obliged to make the source code and technical documentation of the computer programme available to the transferee for this purpose. In addition, it is defensible that adaptations that intentionally unlock functionality that has been protected by the maker also do not fall under the acts permitted in this section.
Section 45k Aw describes the right for the user to make a back-up copy of the computer program to the extent necessary for its intended use. The circumstances of the case determine the scope of this right. For example, the article does not give a limit on the number of copies that may be made. It is conceivable that making a back-up copy is necessary for responsible installation and testing work, for complying with legal retention obligations and/or for troubleshooting. The making of back-up copies cannot be excluded by agreement.
Section 45l Aw states that it is permitted to study and test computer software in order to find out the underlying ideas in this way. However, this must be done during normal use of the programme as referred to in Section 45i Aw. A user is free to make use of tools (such as electronic testing and verification techniques).
Following on from this, Section 45m Aw provides that decompilation of a computer programme (reverse engineering) is permitted, provided it is done under the strict conditions set out in this provision. Decompilation converts the machine language of a computer programme into a higher programming language. This language (source code) is understandable to experts, allowing the structure of a computer programme to be found out. The conditions under which decompilation may take place are as follows.
- The operations must be indispensable to obtain information necessary to achieve interoperability of an independently produced computer programme with other computer programmes;
- decompilation may be performed only by the lawful acquirer of a computer program;
- the data necessary to achieve interoperability shall not already be readily and quickly available by any other means;
- decompilation shall be restricted to those parts of the original computer program which are necessary for achieving interoperability.
The information obtained through decompilation must not be misused. The information may only be used for achieving interoperability, may not be disclosed to third parties and may not lead to the development of a non-new, original computer program. Also, the information may expressly not be used to otherwise perform acts of copyright infringement.
Protection of software with the help of a patent right?
Although computer programs as such may not be considered a patentable invention under the regulations, the creator of a computer program is sometimes granted a patent right. This can take place when the software creates a new and inventive technical effect. The software must therefore contribute to the advancement of the state of the art. Obviously, this will not happen in all cases.
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