International Copyright Protection Of Computer Software

INTERNATIONAL COPYRIGHT PROTECTION OF COMPUTER SOFTWARE

The scope of software copyright protection available in foreign countries varies greatly since it is determined by the applicable law of each country. Copyright laws operate territorially. This means that protection of a work is provided only for a country's nationals or for works first published in the country, unless the country is a party to an international treaty or agreement. Recognition of a U.S. copyright owner’s right in a foreign country depends on whether the country is a party to a copyright treaty with the United States. This memorandum is a general discussion of copyright and its application to computer software, an explanation of U.S. member treaties relating to copyright, and a detailed treatment of software copyright under the laws of specific countries and market regions.

Subject Matter And Rights Protected By Copyright

Copyright protects the writings of authors against unauthorized copying. It protects the expression of an idea as distinguished from the idea itself. Many countries do not recognize computer software as copyrightable, although recognition of software as appropriate for copyright protection continues to become more common worldwide.

The U.S. leads the world in offering broad copyright protection for software. Under U.S. law, copyright protects computer programs in both human readable source code and machine readable object code form, including software embedded as microcode. Computer programs were expressly added to the list of literary works qualifying for copyright protection in 1980. The methods and algorithms in a program are not protected. U.S. copyright protection for computer programs extends to nonliteral elements including the structure, sequence and organization of a program, and to its graphical user interface. Together these elements are called look and feel. Most foreign jurisdictions do not yet recognize protection of these nonliteral elements. Mask works are also protected in the United States under the Semiconductor Chip Protection Act. This Act protects mask works fixed in a semiconductor chip product from being copied.

The exclusive rights granted to copyright holders differ among countries. Most countries recognize the exclusive right to control the reproduction, adaptation and performance of a work. Some countries also recognize certain moral rights of authors. While these rights differ from country to country, moral rights generally include:

Paternity. The right to be known as the author of the work.

Integrity. The right to prevent others from distorting the work.

Disclosure. The right to control publication of the work.

Withdrawal. The right to withdraw, modify or disavow a work after it has been published.

The Berne Convention recognizes the first two, but the United States does not recognize moral rights for computer software.

Copyright Treaties

Treaties and bilateral agreements are in place to recognize the copyright interests of foreign authors beyond their country of origin. The treaties relating to copyright protection involving the U.S. are the Universal Copyright Convention, The Buenos Aires Convention and the Berne Convention. The U.S. also has other bilateral agreements with nations that do not belong to these conventions.

The Universal Copyright Convention (UCC) grants to each member state the same protection to works in a country as that country grants to its nationals for works originating in its territory. This form of reciprocity is called national treatment. Most developed nations are members of the UCC. The only formal requirement for copyright protection of a work under the UCC is that the copyright owner place a notice on the work with the word copyright or (C), the year of first publication and the author's name. Accordingly, software created by a U.S. author is protected in a UCC country to the extent the member country also provides protection for software to its nationals.

The Buenos Aires Convention (BAC) has been adopted by the U.S. and most Latin American countries and provides for national treatment. To be protected, works must bear the marking “All Rights Reserved.” The UCC supersedes the BAC for member countries of both treaties.

The Berne Convention is open to all countries of the world provided they meet certain minimum requirements for protecting copyright interests. The U.S. became a member of the Berne Convention effective March 1, 1989. Berne requirements include (i) national treatment, (ii) the granting of moral rights to authors to protect the exploitation of their works, (iii) the granting of economic rights (including exclusive rights of translation, copying, performance and adaptation), and (iv) the adoption of a minimum term of protection of the life of the author plus fifty years. The Berne Convention is the most important copyright treaty for the United States. Harmonization Of Software Copyright Law In The European Community Under The EC Software Directive

The EC was originally established by the Treaty of Rome in 1958. The EC originally included Belgium, France, Germany, Italy, Luxembourg, and the Netherlands; Denmark, Ireland, and the United Kingdom joined in 1973; Greece joined in 1981; and Spain and Portugal joined in 1986. The Treaty of Rome is the basic legal document that governs EC actions.

The Treaty of Rome set two general goals for the EC, one set relating to customs, tariffs, and the flow of goods between Member States and imported from outside the EC, and a second, more ambitious set, relating to the free movement of goods, services, persons, and capital among the Member States. The first set of goals was accomplished relatively easily and quickly, with tariff barriers being eliminated between the original Member States by 1968. The second set of goals called for the creation of a single integrated market with free movement of goods, services, persons, and capital within the EC by the end of 1992.

The primary legal instruments issued by the EC are regulations, directives, decisions, opinions and recommendations. These instruments differ substantially in their nature, binding effect, and application. A directive requires implementation by the Member States. It typically sets out, in general terms, actions to be taken by Member States and leaves the specifics to each Member State. Each directive will give a deadline by which the national laws of Member States are to be brought into conformity with the directive.

On May 14, 1991, the EC adopted the Directive on the Legal Protection of Computer Programs (Directive) calling for implementation by Member States of conforming legislation by January 1, 1993. The attachment also includes the full text of the Directive, including the Articles and introductory text.

The Directive includes eleven articles and an introductory section of clauses roughly analogous to a U.S. legislative history. The Directive's final form is the result of three years of proposals, extensive lobbying and revisions. It reflects a victory by procompetitive forces. The final Directive language was generally more favorable to their positions than the originally proposed language. For example, the final draft removes any suggestion that interface specifications might be protectible and the final Directive explicitly authorizes limited forms of reverse engineering or analysis and decompilation to achieve interoperability.

The Directive provides for uniformity among Member States in a number of areas, including:

Requiring protection of computer software as a literary work under copyright law;

Defining the level of originality required to establish eligibility for protection and prohibiting the use of other, more stringent criteria;

Providing a common term of protection; and

Allowing reverse engineering and decompilation under limited circumstances.

Because of the Directive, the laws in the EC Member States are in a state of rapid change. Before taking action in any particular country, one should consult local counsel regarding the status of proposed legislation, as well as the practical aspects of enforcement in any particular country. The following will briefly discuss the protection provided to software by each EC Member State.

Belgium has proposed legislation to comply with the Directive, however the current status of this legislation is unknown. It is also likely that patent protection is available for software in Belgium if the patent protection is pursued through the European Patent Office (EPO).

Denmark provides copyright protection and likely provides patent protection to software if pursued through the EPO. It is unknown whether Denmark has proposed or passed legislation to comply with the Directive.

France provides copyright protection and likely provides patent protection to software if pursued through the EPO. France proposed legislation to comply with the Directive in late 1992, however the current status of the proposal is unknown.

Germany provides copyright protection and likely provides patent protection to software if pursued through the EPO. Despite the availability of these forms of protection, software piracy is extremely widespread in Germany; it has been estimated that 80% of the computer programs in use in Germany are illegal copies. Piracy in Germany may have been encouraged by the 1985 Inkasso case in which the German Federal Supreme Court applied a quasipatentability type standard as the threshold for copyright protection of software. The Directive will require Germany to amend its laws, however, it is unknown whether Germany has proposed or passed legislation to comply with the Directive.

The status of copyright protection for software in Greece is unclear. At least one court has found that software is protectible under the general intellectual property laws of Greece if the software demonstrates “creative style” and originality. It is likely that patent protection is also available to software in Greece if pursued through the EPO. Greece is often cited as one of the worst offenders in the area of software piracy, with an estimated 90% piracy rate. The Directive will require Greece to amend its laws, however it is unknown whether Greece has proposed or passed legislation to comply with the Directive.

Ireland has proposed legislation to provide copyright protection to software and to comply with the Directive, however the current status of the proposed legislation is unknown.

Italy passed legislation to comply with the Directive and provide express copyright protection to software. Patent protection may also be available for software in Italy if pursued through the EPO. It will be interesting to see the effect of the new legislation because Italy is also considered one of the worst offenders with respect to software piracy, with an estimated piracy rate of approximately 80%.

It is likely that Luxembourg provides copyright protection to software. It is also likely that patent protection will be available for software if pursued through the EPO. It is unknown whether Luxembourg has proposed or passed legislation to comply with the Directive.

Numerous court decisions have confirmed the availability of copyright protection for software in the Netherlands. Patent protection is also available for software. It is unknown whether the Netherlands has proposed or passed legislation to comply with the Directive.

Portugal has passed legislation to provide copyright protection to software and to comply with the Directive. It is also likely that patent protection is available for software if pursued through the EPO. Similar to Italy, it will be interesting to see if the new laws will have any significant effect on the extremely high rate of piracy in Portugal which is estimated at above 90%.

Spain provides copyright protection to software and likely provides patent protection for software if pursued through the EPO. Despite this, the piracy rate in Spain is estimated at approximately 80%. It is unknown whether Spain has proposed or passed legislation to comply with the Directive.

The United Kingdom provides copyright and patent protection for software. The United Kingdom proposed legislation in late 1992 to comply with the Directive, however, the present status of the proposed legislation is unknown. The United Kingdom is, generally, thought to provide stronger protection to software than any of the other EC countries. Similarly, the United Kingdom is thought to have the lowest piracy rate of any of the EC countries, estimated at approximately 30%. Copyright Protection For Software In Countries Of The European Free Trade Association (EFTA)

The EFTA has seven members, Austria, Finland, Iceland, Liechtenstein, Norway, Sweden, and Switzerland. EFTA and the EC reached an agreement in 1991 to form a European Economic Area (EEA) which was to take effect January 1, 1993. Under the agreement, EFTA countries were to implement in their national laws, current and future EC rules on the free movement of goods, services, and capital. The lack of power or influence of EFTA countries in the EC legislative process has provided increased incentives for the individual EFTA countries to seek EC membership. Presently, at least four of the EFTA countries, Austria, Finland, Sweden, and Switzerland, have applied and hope for EC membership. As a result, these countries will likely seek to comply with the EC Directive.

In Austria, it is likely that software will be protectible under copyright laws and probable that software may be protected under patent laws, if patent protection is pursued through the EPO. Austria has applied for EC membership and will, therefore, likely amend its copyright laws to comply with the EC Directive.

In Finland, it is likely that copyright protection has been available for software since at least the 1960’s. Additionally, Finland's copyright law was amended in January 1991 to provide express protection for computer programs.

Iceland is a member of the Berne Convention and the UCC, however it is unknown whether Iceland provides copyright or patent protection to software.

Liechtenstein is a member of the Berne Convention and the UCC, however it is unknown whether Liechtenstein provides copyright protection for software.

Although the law was unclear in Norway, it is likely that copyright protection has been available for software since the 1960’s. Norway's copyright law was amended in August 1990 to provide express protection for computer programs.

Although the law was unclear in Sweden, it is likely that copyright protection has been available for software since the 1960’s. Sweden's copyright law was amended in July 1989 to provide express protection for computer programs. Sweden has applied for EC membership and will, therefore, likely amend its copyright laws to comply with the EC Directive.

In Switzerland, a number of decisions in copyright infringement actions suggest that copyright protection is available to software. Additionally, Switzerland has applied for EC membership and will, therefore, likely amend its copyright laws to comply with the EC directive.

Software Copyright Protection In Eastern Europe And The Former Soviet Union Countries

The following will briefly discuss the Eastern European countries of Bulgaria, Czechoslovakia, Hungary, Poland and Romania, and the countries of Armenia, Estonia, Latvia, Lithuania, Russia and Ukraine that were formerly a part of the Soviet Union. Software piracy has been widespread in a number of eastern European and former Soviet Union countries, however, most of these countries are beginning to take steps to provide greater protection for computer programs. Much like in the EC, the laws in these countries are in a state of rapid change, due in large part to external pressures from the U.S., the EC, Japan, and leading software companies. Through bilateral and multilateral agreements, a number of these countries are agreeing to pass legislation and are passing legislation to provide copyright or other protection for software, although the availability and form of protection accorded to software varies considerably from country to country as of now.

Bulgaria does not provide copyright protection for software. In 1979, it established a separate area of law to protect software. In 1990, Bulgaria and the U.S. reached a trade agreement in which Bulgaria agreed to implement legislation to, among other things, provide copyright protection for software. It is unknown whether Bulgaria has proposed or passed such legislation.

Czechoslovakia provides copyright protection but not patent protection for software. The copyright protection arose in 1990 as a result of a trade agreement between Czechoslovakia and the United States.

Hungary has provided express copyright protection for software since 1983. It is unclear, but patent protection may also be available for software.

Poland does not provide express copyright protection for software, but commentators strongly suggest that copyright protection is available for software. Patent protection is not available for software. In a 1990 trade agreement between Poland and the U.S., Poland agreed to enact legislation providing copyright protection for software. Due in large part to controversies over outside pressures concerning the particular language of the proposed legislation, no such legislation has been enacted to date. Additionally, the legislation as proposed would not be retroactive as to software. In fact, prior users of software would be free to continue using such software regardless of how it was acquired.

Romania is a member of the Berne Convention, the Paris Convention, and the Patent Cooperation Treaty, but it is unknown whether Romania provides copyright or patent protection to software.

In 1990, before its current problems, Yugoslavia amended its copyright laws to include software as protectible subject matter. Patent protection was not available to software.

Similar to the situation in Eastern Europe, external pressures from the U.S., the EC, Japan, and leading software countries is leading to rapid change in the protection provided for software in the former Soviet Union countries. As with the Eastern European countries, U.S. trade agreements with the individual countries are playing an important role in the enactment of new protection for software. In an earlier trade agreement between the U.S. and the former Soviet Union, the Soviet Union agreed to adopt legislation providing copyright protection to software as literary works. The U.S. is now seeking to obtain similar trade agreements between the U.S. and each of the newly independent states. The U.S. has obtained such agreements with Armenia, Russia, and the Ukraine. However, it is unknown whether Armenia or the Ukraine has passed the implementing legislation contemplated. Agreements are currently under negotiation with Belarus, Hungary and Kazakhstan.

Russia has taken important steps toward providing adequate protection for software and continues to move in the right direction. The Russian Law On the Legal Protection of Computer Programs and Data Bases was reaffirmed by Russian Parliament in September 1992 and signed by President Yeltsin in October 1992. This law creates protection for software as an area of law separate from the broad area of copyright law.

Under the Russian law, copyright in software arises when the work is created. Registration is permitted but not required and the term of protection is the life of the author plus years. The law provides exclusive rights including control over publication, reproduction in whole or in part, distribution, and modification. Remedies include injunctive relief, actual damages, damages similar to U.S. statutory damages, and a possible fine of 10% of damages, paid to the Russian Treasury.

Although this law is an important step in the right direction, there are a few weaknesses that the U.S. and others are pressuring Russia to correct. For example, there is concern that treating software and data bases as an area of law separate from general copyright law will result in interpretations granting a lesser degree of protection to software and data bases. There are a few more specific concerns as well, such as the lack of criminal penalties other than the 10% fine. Additionally, the threshold for protection refers to creative activity rather than simply requiring that the work be the author's own intellectual creation as in the Directive. Also, the right to control rental of software is not clearly defined. Under the trade agreement between the U.S. and Russia, Russia has agreed to implement legislation to provide copyright protection to software as literary works.

Russia is currently drafting a comprehensive copyright law intended to comply with the requirements of the Berne Convention and has indicated a desire to join the Berne Convention if the law as passed is compatible. The U.S. and others are pressuring Russia to incorporate the protection for software and databases into the comprehensive copyright law and to adopt protection called for by the EC Directive. Russia has indicated that it will likely incorporate the software and data base laws into the comprehensive copyright law and that it may adopt provisions from the EC Directive as well.

In May 1992, Latvia enacted temporary regulations regarding patents, industrial designs, and trademarks. However, these regulations did not include any provisions on copyright law. Lithuania has also adopted similar temporary regulations, and all three Baltic states, Latvia, Lithuania and Estonia, are considering membership in the World International Property Organization (WIPO) as well as membership in other international conventions.

Software Copyright Protection In Mexico

Mexico is a member of the Berne Convention and, therefore, obligated to meet the minimum standards of that treaty, including those respecting copyright protection for computer software. Interestingly, there is no developed case law regarding software copyright infringement in Mexico, although new criminal penalties are beginning to be enforced by federal prosecutors. These criminal penalties, along with other enforcement procedures which likely will be implemented with NAFTA, should offer some encouragement for U.S. businesses marketing software in Mexico. However, enforcement issues will be a continuing concern to the U. S. software industry.

Effective in 1991, Mexico revised its copyright law to provide explicit protection for computer software. The revised law lists computer programs as a separate type of work. The term of protection is the life of the creator plus fifty years, and copying is permitted solely for archival purposes. Because Mexico is a Berne Convention member, separate registration of copyright for computer programs by U.S. persons is not necessary.

The Mexican Copyright Act provides for civil and criminal remedies for infringement of copyright. Under the criminal provisions, a penalty of up to six years in prison and fines up to a little over $2,000 for infringement are now available. A limitation is that the software copyright infringement must be done for the purpose of gain and it is unclear what this really means. Improvements will be needed in Mexico for effective enforcement to take place. Border controls and other proposals contained in NAFTA are expected to be implemented. " “

20040116 Software Legal Primer "INTERNET BULK MAIL MARKETING" "

INTERNET BULK MAIL MARKETING

“Spam” is the term used for unsolicited commercial email. It closely parallels third class junk mail.

The public response to spam varies greatly. Some become hostile and shoot back threatening invectives at spammers. Others identify spam in the subject line of their email messages, and simply delete these messages unread without any noticeable rise in blood pressure.

Is spam a Constitutional right or an unlawful parasite? The issue is now in the courts. However, the ultimate solution will more likely come from technology or from the policy decisions of Internet Service Providers.

A battle has been raging between the current leader of online services, America Online (AOL) and Cyber Promotions. Cyber Promotions is an Internet advertising company and is paid by businesses to send bulk email advertisements. Cyber Promotions sends solicited and unsolicited email, but claims to target people that are likely to be interested in the particular ads.

Cyber Promotions sends out 1.3 million email messages once or twice daily, with 900,000 of these going to AOL subscribers. AOL believes that this flood of spam to its subscribers will cause people to either leave AOL, or not sign up with AOL at all. Cyber Promotions had a problem because many of the AOL email addresses it uses are no longer current. AOL's computer automatically “bounces” these undeliverable messages back to the return address found in the message.

The quantity of these bounced messages placed a heavy burden on the computer system of Cyber Promotions' Internet Service Provider. To solve this problem, Cyber Promotions inserted a fake return address in its email which resembled an AOL address. All of the bounced messages returned to AOL's system, which placed a heavy burden on AOL's system.

AOL found the Internet Service Provider that was the source of these mailings. AOL collected the bounced messages and sent them in bulk to Cyber Promotion's Internet Service Provider. The messages brought the Internet Service Provider's system to its knees. Under threat from AOL of continued bombings, the Internet Service Provider stopped providing services to Cyber Promotions.

In April 1996, Cyber Promotions went to court for an injunction against AOL to stop these bombings. One week later, AOL also filed for a preliminary injunction to prevent Cyber Promotions from faking the return AOL address. AOL claimed that causing these bounced messages to reenter the AOL system violated the Federal Electronic Communications Privacy Act as well as the Computer Fraud and Abuse Act.

Cyber Promotions consented to this injunction, which ended the need for the AOL bombings. The injunction forbids Cyber Promotions from “using a false, fraudulent, anonymous, inactive, deceptive or invalid return email address, or using any other artifice, scheme or method of transmission that would prevent the automatic return to Cyber [Promotions] or its access providers of undeliverable email sent to, or through, AOL's email system.” The injunction did not, however, prohibit Cyber Promotions from sending out spam to AOL subscribers. Cyber Promotions continued sending a high volume of spam. AOL then set in place a system which would block and return ALL mail sent by Cyber Promotions. Cyber Promotions was granted an injunction against AOL to prevent AOL from blocking Cyber Promotions messages and from interfering with the business relationships between Cyber Promotions and its Internet Service Providers. This injunction was vacated because the lower court entered a preliminary injunction without a proper hearing or making finding of fact.

Merely sending unsolicited email, in itself, is not a crime and is not otherwise actionable. While many states prohibit unsolicited fax transmissions or regulate unsolicited telephone solicitation, there are no similar prohibitions or regulations relating to email.

Nevertheless, the AOL case raises many interesting legal issues arising from the methods used for sending spam as well as the methods used for blocking spam.

AOL claims that Cyber Promotions' actions violate the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act and the Virginia Computer Crimes Act. For example, the Computer Fraud and Abuse Act prohibits sending of a transmission to a computer system with reckless disregard of a substantial and unjustifiable risk that the transmission will cause damage to a computer system or cause the withholding or denial of the use of a computer system and such transmission occurred without the authorization of the persons or entities who own or are responsible for the computer system. Arguably, causing thousands of bounced messages to return uninvited to the AOL system might fall within the scope of this section of the Act.

Cyber Promotions responds that these statutes are primarily directed to computer hackers attempting to gain illegal access to electronic information or computer users who create computer viruses to take down third party computer systems. Cyber Promotions argues that these statutes target instances where the defendant intends to cause harm or damage to a third party's computer system.

AOL claims that Cyber Promotions has misappropriated AOL's computer system, since it is the AOL system that, ultimately, distributes the messages to the AOL subscribers. AOL claims that it has had to invest in additional hardware so that its system can accommodate the spam. Cyber Promotions argues that it is simply using the public entrance way to the Internet AOL has opened up for its members and that AOL assumed the risk of such email when it opened this pathway into its system.

AOL claims that faking AOL as a return address was a trademark infringement and unfair competition. AOL claims that using an AOL address as the return address misleads people into thinking that the message came under the auspices of or with the approval of AOL. AOL further claimed that Cyber Promotions' actions dilute the value of AOL's service mark and tradename.

Cyber Promotions argues it would be a violation of its First Amendment rights to allow AOL to block its messages. It claims that its messages are commercial speech. Generally, free speech is protected only from government action, not from private action. To the extent AOL is a private entity, it cannot be charged with violating another party's right to freedom of speech. However, Cyber Promotions claims that since the Internet infrastructure has a history of government involvement, AOL's actions amount to government action. Cyber Promotions is relying on “shopping mall” cases where the U.S. Supreme Court prohibited shopping malls from preventing leaflet distribution.

Cyber Promotions also argues that AOL's mail bomb actions have influenced Internet Service Providers to cease granting service to Cyber Promotions. On October 18, 1996 Sprint Communications terminated Cyber Promotions' access. Therefore, Cyber Promotions claims that AOL has unlawfully caused providers to breach their service agreements and stop providing service.

At the end of the day, control of spam will likely come from use of blocking technology and the uniform and voluntary enforcement of policies developed by Internet Service Providers. The court system moves too slow to be an effective watch dog over the Internet. Additionally, as time passes, our perceptions of spam might change to the point where it travels virtually unnoticed, except by those who want to see it, similar to traditional junk mail. For now, businesses intending to use spam as a marketing tool should understand that they at least run the risk of creating a negative image for themselves with potential customers.