Software protection

Specificity of protection

Computer programs are specific works of mind because their character
is primarly functional. In other words, they are more informational
tools and less forms of expression of the personality of their author.
This reality has important legal consequences.
The terms of protection of computer programs present some differences
compared to the terms of protection of classic copyrighted works of
mind. Although the main condition for protection is the originality
criterion, this criterion is evaluated for computer programs in a more
objective way. A computer program, thus, will be protected if it
possesses some specific functions, new arrangements, etc. This lower
level of protection closer to the sweat of the brow approach.

The European Directive 91/250/EEC

The Directive 91/250/EEC of 14 May 1991 on the legal protection of
computer programs creates a common framework for the protection of
computer programs for all EU member states.This Directive is one of the
most significant pieces of intellectual property legislation already in
place in the EU. All Member States have implemented the Directive in
their national laws. The Directive imposed the obligation to Member
States to protect computer programs by copyright as literary works.
The protection covers only the form in which the program is expressed,
while the idea of creating a computer program which has a specific
function or purpose it is not protected by copyright. The object code
and the source code of the program are protected. The preparatory design
material is also protected, provided that in the nature of the
preparatory work is such that a computer program can result from it at a
later stage. The beginning of the protection starts when the computer
program starts to exist as a work,- even its is not completed-, and that
happens from the moment the preparatory design material has taken a
complete form which is detailed and sufficient enough to lead to the
creation of the source and object code in a later stage. Having in mind
the different stages of the creation of a computer program which have
been previously mentioned, which could be this chronological moment ?
We cannot give a clear standard answer, because that depends on the
circumstances of every case. However, we should have in mind that in
general, the preparatory design material is sufficiently specific when
it has taken the form of the flow chart or other similar forms and not
in previous stages of the creation of the program.

The main differences compared to common copyright rules are the
following :

  • The authorship of the employer. Article 2.3 of the Directive : “.
    Where a computer program is created by an employee in the execution of
    his duties or following the instructions given by his employer, the
    employer exclusively shall be entitled to exercise all economic rights
    in the program so created, unless otherwise provided by contract.” For
    the analysis of the attribution of economic rights over computer
    programs to the employer see : Directive 91/250/EEC on software copyright protection : computer programs created by employees
  • There’s no private use copy. While the user of a classical literary
    work has the right to make one or more private copies provided that
    this act is not contrary to the normal exploitation of the work and
    doesn’t harm the lawful interests of the rightholder, the lawful user
    of a computer program doesn’t have the right to make one or more
    private copies of the program. Instead of that, the Directive grants to
    the lawful user of the program a right to create one back up copy of
    the computer program. The difference is that the back up is not
    intended to be used by the user if the software normally works.
  • Reverse Analysis, decompilation and error correction. Every user
    has the right to analyse and perform decompilation on a software, when
    this act is necessary in order to acheive interoperability between the
    sofware and its digital environment.The recognition of this right is
    very important because it gives the possibility to new authors to
    study, analyse and to discover the process which lead to the
    manufacture of the computer program in order to permit its connection
    (the so called interoperability) with other individually created
    programs. Moreover, there is no need for the right holder’s consent in
    order to execute the restricted acts of reproduction and adaptation of
    the program when these acts are necessary for the use of the program,
    including for error correction. However, the maintanance of the program
    is not covered by this user right. These acts are permitted only in
    favour of the lawful user/acquirer of the computer program. According
    to the Evaluation Report of the Commission concerning the Directive
    91/250/EEC, a lawful user can be a purchaser,a licensee, a renter or a
    person authorised to use the program on behalf of one of the above.
  • Special measures of protection are provided. Any act of putting
    into circulation, or the possession for commercial purposes of any
    means the sole intended purpose of which is to facilitate the
    unauthorized removal or circumvention of any technical device which may
    have been applied to protect a computer program is prohibited.

Relevant provisions of the Greek law

Article 2 of the law 2121/1993 : Object of the right
Without prejudice to the provisions of section VII of this Law,
computer programs and their preparatory design material shall be deemed
to be literary works within the meaning of the provisions on copyright
protection. Protection in accordance with this Law shall apply to the
expression in any form of a computer program. Ideas and principles which
underlie any element of a computer program, including those which
underlie its interfaces, are not protected under this Law. A computer
program shall be protected if it is original in the sense that it is the
author’s personal intellectual creation.

Article 42 : Restrictions

4. The person having a right to use a copy of a computer program shall
be entitled, without the authorization of the author and without payment
of a fee, to observe, study or test the functioning of the program in
order to determine the ideas and principles which underlie any element
of the program, if he does so while performing any of the acts, which he
is entitled to do. Any agreement to the contrary shall be prohibited.

Article 43 : Decompilation

1. The person having the right to use a copy of a computer program shall
be entitled to carry out the acts referred to in Article 42 (1) and (2)
without the authorization of the author and without the payment of a fee
when such acts are indispensable to obtain the information necessary to
achieve the interoperability of an independently created computer
program with other programs, provided that the information necessary to
achieve interoperability has not previously been easily and readily
available to the person having the right to use the computer program,
and provided that these acts are confined to the parts of the original
program, which are necessary to achieve the said interoperability.
2. The provisions of paragraph 1 shall not permit the information
obtained through its application: a) to be used for goals other than to
achieve the interoperability of the independently created computer
program; b) to be given to others, except when necessary for the
interoperability of the independently created computer program; or c) to
be used for the development, production or marketing of a computer
program substantially similar in its expression to the initial program,
or for any other act which infringes copyright.