Suin generis protection for softwares

Jamie Powers asked:
>
> Any fans out there of a sui generis software law?

I am new to the conversation here, further, I am European (any other Europeans out there?), so I can't add much to the conversation on U.S. issues. However, sui generis protection is an interesting question (to the best of my knowledge, the only country where this approach was enacted was Bulgaria, but I don't know whether that law is still in effect). There have been several bills worked out (Japan and Brasil I can rememeber at the moment), but none of them have been passed.

It is interesting to see to what extent the legal protection of a legal subject has to differ from its backing laws to establish a new branch of law, or sui generis if you wish. The EU law source for softwares is the 91/250 Directive of the Council on the legal protection of computer softwares, which defines the Berne Convention to be looked at in all cases where the Directive is silent. Also, softwares must be looked at as literary works within the spirit of the Berne Convention, but the special rules of the Directive prevail over norms of the Berne Convention. The Directive basically deals with those software-specific issues where the Berne Convention is not applicable (i.e. reverse engeneering, backup copy, listing the programme, etc.). In my view, these exceptions from the rules applicable to literary works may be so numberous and also so essential, that they may constitute a de facto sui generis protection while du iure the protection of softwares refers to copyright law. In this case, copyright laws that apply on tipical literary works would be background norms of software protection just the same way as most rules of civil law are applicable to copyright issues in case copyright law norms are silent. In my view, the trend is that the number of software-specific legal solutions will result in a sui generis protection, even if draftsmen will be reluctant to admit it. And practicly speaking, it's very safe to know that even if software-specific norms are silent, we can always turn to copyright law -- this disables a series of gaps to arise. There are, however, still a lot of questions that should be resolved on sui generis basis - how about the protection-period for instance? Does anyone else also find it ridiculous to grant 70 years protection period after the death of the author for any software where perhaps the new version is to come out in 6 months? This is even more striking if we look at the reasoning of the Berne Convention: originally the 70 years were 50 years, and the reasoning was to provide for legal protection (with regards to all the financial benefits it brings) to one generation in the kinship after the death of the author. 50 years were raised to 70, because the spring of living conditions has raised life-expectancy from 50 ys to 70 ys. Now, because of its values that don't expire in time, in case of a novel or book it is understanable to protect it in favour of those who inherit the rights. But in case of a software that loses its value just when the new version comes out, I find it highly debatable.

A little addition to the question of originality/creativity: the above Directive of the EU Council explicitely states, that in order to grant legal protection, no other condition can be looked at but the criterion whether the software is the own intellectual product of the author or not. This was a response to the German court-practice dating back to a case called Inkasso/Bertriebsystem-case, where the court came to the conclusion that in order to grant legal protection, softwares must represent a level of individuality which is above the general level of individuality/creativity of the profession of that time. It's funny that most scholars commenting on this still say, that a simple two-line program that anyone can write in computer class in BASIC prog.language does not qualify for legal protection. While this sounds like a practical approach, I myself don't see what this finding is based upon.

Hope it was helpful to someone.

Greetings from Budapest, Hungary -

                        Gabor Palasti, dr.
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                    Central European University,
                          Budapest, Hungary
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                      l96pal44[_at_]sirius.ceu.hu
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                    pala[_at_]petra.hos.u-szeged.hu