Copyright Protection Of Computer Programs



Copyright Protection Of Computer Programs

Introduction

A Directive on the Legal Protection of Computer Programs was passed in1991, demanding that EU member states pass laws protecting computer programs as literary works and providing for interoperability between pieces of software. That Directive has been subject to a number of amendments, including some by the Copyright Term Directive, so it was decided that a new version of the Directive would be published, incorporating all the amendments but not changing the impact of the legislation. The new Directive is numbered 2009/24/EC and was published in the EU Official Journal on 23 April this year. It came into effect 20 days later, on 25 May.

Directive 91/250/EEC

Despite the extensive treatment of exhaustion both by the ECJ, and in the subsequent network of Directives that have harmonised much of copyright and related rights in the Community, there remain some open issues as to the border between the restricted act of distribution as it applies to physical articles, and to which the doctrine of exhaustion applies, and other forms of distribution or making available, to which it does not.

One such area is that of computer programs, to which, in this and most other respects, Directive 2001/29/EC does not apply. Although Directive 91/250/EEC (now 2009/24/EC) addresses the issue of rental for computer programs it is silent, in view of its age, as to the question of on-line delivery. It also not apparent on its face, again not surprisingly given its age, how it provides for the restricted act of making available to the public, as mandated by the 1996 WIPO Copyright Treaty. The answer to this, according to the Commission is to interpret the restricted act of distribution in this Directive broadly, so that it is not limited, as in other harmonising Directives, to physical distribution, but also covers on-line distribution, in a similar way to US law. This means that it can mislead in the context of this Directive to speak of the distribution right being exhausted without qualifying this as applying only to the distribution of physical articles.

Also, reflecting its specific sector focus this Directive also has a much more limited list of “exceptions” than the later copyright Directives - indeed these are hardly exceptions at all in the sense commonly understood in copyright, in that they are only for the benefit of a “lawful acquirer” (Article 5(1)) or someone “with the right to use” (Article 5(2) and (3)) and Article 6). This approach reflects the widespread use of licensing in this sector, including “shrink-wrap” or “click-wrap” licences for computer programs that are “sold”.

The widespread association of physical distribution with licensing for computer programs has had an impact on the issue of exhaustion, although the case law here seems to have been exclusively German, and no matters under this (or any other) aspect of this Directive have ever been considered by the ECJ, and no references under it are pending. The leading case is the decision of the German Federal ...