Re: Suin generis protection for softwares

On 18.02.97, Gabor Palasti <l96pal44[_at_]sirius.ceu.hu> wrote:
>
> 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.

The whole question of a sui generis protection of software has been trashed out in the WIPO in the middle of the 1970s, and a model law was actually drafted - not adopted, as far as I know, by anyone.

I remember at an Expert Meeting when Geneva had unusall heavy snowfall, and we could see how various garden utensils were used in attempts to remove the snow. The Soviet delegation (this was well before the fall of the wall) and the Norwegian shared some amusement with these activities, as snow is a more commonday (at least common winter day) occurrence in our countries. And the Soviet delegation made an elegant analogue in the meeting:

If, like in Geneva, snow only falls once in a while, and not every year, you can be satisfied to imporvise with what is at hand. But if it is a regular occurrence, you develop specialised tools. What is the case of computer software - will it be contant, or not.

Zentro Kitigawa and myself have used the term "industrial copyright" to emphasise the different legal policies underlying the application of copyright to computer software and data bases, perhas also you can throw in the sui generis chip protection.

The reason copyright was chosen, is - as I a sure everybody are aware of - extremely simple. The Berne Convention does apply to literary works, but national legislation may qualify something as a "literary work". By agreeing that computer programs are literary work, an international regime was created. Something the idustry sorely needed, not least the US industry. The time the US choose to become member of the Berne Union is realted to this need.

Jon Bing

Institutt for rettsinformatikk
Det juridiske fakultet
Universitetet i Oslo

Norwegian Research Center for Computers and Law Faculty of Law - University of Oslo

PO Box 6702 St Olavs Plass
N-0376 OSLO - Norway

Phone: +47-22-850101, fax: +47-22-850102 Private fax: +47-22-493190
<jon.bing[_at_]jus.uio.no> Received on Thu Feb 20 1997 - 13:21:13 GMT