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News & Media

These days the computer programs are protected as literary works

Date: 19/09/2017

Creation of the copyright was a result of the upswing of the printed media in the past, that motivated the need of its complex regulation and protection[1]. Since the last century, copyright or any other intellectual property rights have experienced a large boom. In relatively short period of time, this area underwent many challenges mostly because of the creation of so-called Information Society. It placed information, technical and scientific progress on top of the society´s scale of values, and as a result the society focuses more on computer technology, innovation and digitalization. From the copyright´s point of view, classification of computer programs as intangible assets protected by copyright wasn´t at first accepted without objections, mostly because of the peculiarities of the computer programs´ protection[2]. These days the computer programs are protected as literary works, while the increased necessity for their protection resulted from the arrival of the World Wide Web and Internet.

In Slovakia, the computer program is protected by copyright under the law no° 185/2015 Coll., Copyright Law, as amended (hereinafter “Copyright Law”), which is for the mentioned reason the most important legal text relating to the software. Slovakia also implemented into its legal order the directive 2009/24/EC of the European Parliament and of the Council on the legal protection of computer programs (hereinafter “directive on computer programs”) that sets the rules to ensure compliance of the legal texts of the European Union concerning the copyrights and related rights in the internal market.  Main incentive was to ensure digital and cross-border usage of this protected content, so that the rights of the rightsholders could be protected in other member states, and also because the Internet isn´t restricted by physical borders.  

With the arrival of the CD and DVD technology, the pirate computer programs were illegally spread mostly on physical carriers[3]. Even now the pirate copies of computer programs exist but this way of illegal spreading of the copyright works has faded. Great majority of population gained almost unlimited access to the Internet through which the distribution of illegal content moved from so-called offline to the online environment.

Ways of spreading the illegal software and other copyright work differ depending, if the data are made available in centralized manner in one place (with clearly identified IP address from which the final user downloads such data) or through decentralized system (typical example is peer-to-peer application). Centralized systems work in a way that allows usually anyone to download whole file uploaded in one storage site. That is because the providers of such websites directly violate copyrights by providing content without rightsholder´s permission and are exposed to higher risks. At peer-to-peer platforms, users of network stand not only as recipients but figure also as active servers that share their data to other users[4].

One of the first interesting cases related to the application of peer-to-peer program was Napster protocol. Created by young, at the time only 17 years old, Shawn Fanning[5], Napster should serve for administration of social network of music lovers. It allowed users to exchange mp3 tracks with one another. Needless to say, that to the majority of the tracks, users didn´t have a rightsholder´s permission. As was later revealed, another Napster´s problem was that the host kept the track list of every user, shared by them on the network, and introduced individual users to one another by creating a catalogue of shared files. In February 2001, Napster had 26,4 million users[6], what several artists in the music industry didn´t like. Regarding the significant influence the company Napster has gained, several music publishers decided to sue the company. During the judicial proceedings, the rightsholders proved that there were tens of thousands illegal files in the Napster network, that had to be blocked afterwards[7].

Napster wasn´t the only provider using peer-to-peer platform so far. In years to follow, many similar networks, sharing legal and illegal software and other copyright works, were created. Question of providing a peer-to-peer platform wasn´t solved with the Napster case and this problem was brought to the European courts and to Court of Justice of the European Union.

In the recent case, Stichting Brein against Ziggo BV, XS4ALL Internet BV also known as the “Pirate Bay” suit[8], Court of Justice inquired into “public transmission” issues within the meaning of Article 3(1) directive no°2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society as last amended (“InfoSoc directive), also implemented in the Copyright Law.

In this context, it was necessary to define if public transmission means making accessible and administration of the platform of the mutual sharing on the Internet, which by indexing the metadata concerning protected works and providing the search engine allows the users of the platform to find files and mutually share them within the shared data network between the users (peer-to-peer)[9].

Directive no°2000/31/EC on certain legal aspects of information society services, electronic commerce (hereinafter “Directive on electronic commerce”) in particular, allowed that providers on the Internet weren´t responsible for breaching the copyrights and other rights on their platforms under the condition that they do not actively participate on sharing the illegal content. Providers then use, and often even misuse, this protection with the intention to avoid responsibility for breaching copyrights and other rights to a significant extent.

By the passed judgement the Court of Justice of the European Union stressed that since the administrators of the platforms of the mutual sharing figured in an active position and among other created file indexes, categorized and deleted files, with their actions, regarding the considerable number of users, they fulfilled the regulations of the InfoSoc directive. Administrators thus knowingly allowed or rather carried out public transmission of protected works without the rightsholders´ permission, by which they breached their copyrights. According some specialists, “Pirate Bay” suit will have significant impact on future cases.

Position of entrepreneurial subjects is sealed for now. Anyone in a position of the administrator of the platform who will knowingly help or share illegal software or other copyright work, will breach the Copyright Law. Even though the practice of the court in Slovakia on this matter isn´t unified, it is reasonable to think that in case of proving the breach of copyrights the courts will impose heavy fines. For example, French district court in the recent case imposed the infringer a fine of 2 Euros for every sharing of the illegal copyright work, while overall loss represented 13 million Euros.

However, higher mentioned cases are a mere drop in the ocean. Many new and many already existing legal questions, related to the usage of Internet and protection of copyright works, yet need to be answered.

What does it mean for us, everyday users of the Internet and different platforms? Every Internet user should carefully read information at the registration to avoid unnecessary complications. At the moment, the Copyright Law grants an exception to the individuals for so-called “copies for personal need”. It means the data for personal use but without the author´s permission, which cannot be used further, for example in their business. In case of meeting these legal conditions, individual won´t breach the copyrights.

What should we do in practice?

If you are a legal person or entrepreneur, always ask for licence agreement and carefully read it. It seems that today it is common practice that no one reads licences, especially the electronic ones and only clicks “I agree”. However, it is important to at least briefly read them and in case that you don´t understand something, to contact the corresponding person.

In case you upload any data on the publicly available platform, make sure that you have the permission from the rightsholder. Otherwise you risk the sanctions for breaching the copyrights.

If you are an individual and want to download data from the Internet, always make sure that you are not on pirate server and if the provider has a licence necessary for sharing the copyright work to extent necessary. If you will upload any data on the publicly available platform, make sure that the rightsholder gave you the permission to do so.

In the end, the compliance with the copyrights doesn´t have to be so complicated. You only have to be careful and give up few minutes of your time to find information about the copyright work in question. This way we also show respect to the authors´ creative activities and ensure their well-deserved reward.

JUDr. Darina Parobeková, LL.M. 

[1] Information Technology Law, The Law and Society, 3rd edition, Andrew Murray, Oxford University press, r. 2016.

[2] Ochrana autorských práv v informační společnosti, Ján Kříž, Linde Praha a.s. – právnické a ekonomické nakladatelství a kníhkupectví Bohumily Hořínkové a Jana Tuláča, str. 45, r. 1999.

[3] Information Technology Law, The Law and Society, 3rd edition, Andrew Murray, Oxford University press, str. 242, r. 2016.

[4] Internet a autorské právo, 2. aktualizované a rožšířené vydání, Jiří Čermák, Linde Praha, a.s. . – právnické a ekonomické nakladatelství a kníhkupectví Bohumily Hořínkové a Jana Tuláča, str. 92, r. 2003.

[5] Information Technology Law, The Law and Society, 3rd edition, Andrew Murray, Oxford University press, str. 298, r. 2016.

[6]  https://www.thefreelibrary.com/Global+Napster+Usage+Plummets,+but+New+File-Sharing+Alternatives...-a076646755, link zo dňa 30.08.2017.

[7] Information Technology Law, The Law and Society, 3rd edition, Andrew Murray, Oxford University press, str. 303, r. 2016.

[8] Judgment of the court (Second Chamber) from 14.07.2017, C – 610/15, Stichtig Brein against Ziggo BV, XS4ALL Interent BV procedure.

[9] Ibid.