Software Protection; Problems Arising from Poland's Move towards a Market Economy

1. Introductory Remarks.

In a legal system of every country there are two ways which are supposed to protect results of an intellectual work : the patent law set to protect the solution of a technical type and the copyright law protecting artistic works. A software protection model, with reference to the copyright law rules, became dominant throughout the world[1].

 In many countries it happened this way following the choice made in USA[2]. At almost the same time (1985) copyright laws were amended in West Germany[3], France[4], and Japan[5]. In these acts it was stated unambiguously that computer programs were the object of protection[6]. In some countries one can indicate established judicial decisions confirming this kind of protection.

Presently in ten countries (including Poland)[7] the amendment of the copyright law which would consider the computer program protection is being worked on. One has to emphasize, that a more or less clear declaration whether one accepts the copyright law or not is not equivalent to clearing away all legal uncertainties or vaguenesses. It does not mean that all the protection standards existing in each particular country are the same.

In my further considerations I will try to bring forward the most important problems in this field with the analysis of possible solutions taking into account the copyright law in force in Poland[8] as well as a suggested settlement of these matters in the new bill.

The Polish Copyright Law in force from 1952 does not list computer programs in the catalog of works to be protected with its protection. In Art.1 it is stated that each work either literary, scientific or artistic becomes the object of the copyright law. In paragraph 2 of this article protected works are listed as an instance, and there are no computer programs among them. In Polish judicial decisions a wide range of interpretations of protected works catalog is prevailing as the majority of lawyers in Poland declared the possibility of the copyright - computer program protection on the basis of the law in force. New proposals of the copyright law were prepared in 1992 (of March 12). The project accepted the synthetic definition of the work treating work as the manifestation of a creative output having an individual character, set in any form independently of its value, purpose and the manner of formulation. The definition creates the possibility of adding new technical achievements such as computer programs to the meaning of the work. A separate chapter of the new bill deals with them. It happened this way because some problems, such as an adaptation, a reproduction and a personal use of a program should have been put together in a different manner from that in the case of other works being ruled by the copyright law. One has to point out that computer programs are under copyright law protection on the general grounds with the exceptions mentioned in the separate section.

 The interpretation of the copyright law in force as well as drafting of the new bill is greatly influenced by Polish engagement in international affairs. While considering the matter whether the copyright law takes into account computer programs or not, one should not forget the resolution of Polish - American agreement concerning business and economic relations, signed in 199O[9]. In this agreement Poland is obliged to ensure computer program protection within the copyright law limits according to the rules accepted for literary works. Legislative works carried out in this field in Poland at the moment are greatly influenced by the European Communities (EC) Directive on the Legal Protection of Computer Programs[10].

These Directives include the most recent solutions in the computer program protection and highlight the most important problems connected with software protection.

 Computer programs are usually included in the category of literary or linguistic works'. One cannot apply the legal classification of programs (i.e. their listing in the catalogue of protected works) as a condition for coming under protection of the copyright law. On the contrary, one can accept as an established opinion that if a computer program meets the requirements that should be fulfilled by every work to come under the copyright law, it deserves protection. Therefore, not all the computer programs are the objects of the copyright law protection. According to general rules, in order to come under the copyright law protection it is necessary for them to be an original product of an intellectual work of a human being, set in a certain manner. These conditions have to be fulfilled on the basis of the existing law as well as on the basis of the new bill. Let us try to determine these conditions more closely.

2. Preservation of a Program as a Protection Condition.

 A program is either a text in the form of a succession of instructions or graphic symbols ( in a block diagram) or a code registered on a magnetic tape or a disc.

From point of view of the copyright law it is not important whether the program had been written correctly or if it can be started. If it has some errors and does not work, we can treat it as an unfinished work and the Polish copyright law, according to Art. 4 protects also unfinished drafts, projects, models etc. A program in a source code, in an object code as well as a firmware program stored in ROM in a computer comes under the copyright protection.
 
 

3. Originality - Individuality of a Computer Program.

 It is very likely to reach a consensus which would ensure that the ability of computer programs to be protected is not dependent, apart from intellectual, author's personal work, on any additional criteria, such as beauty or a great value of a program. That means the requirements are the same as in the case of other literary works.

 Basing on the Polish Law in force one should use a very liberal interpretation of "individuality stamp" in relation with computer programs - remembering some of the Supreme Court statements, such as: "A degree of a value of a work does not decide about the origin of the copyright law, even a little value of a work, as long as it contains the author's individuality element it can become the copyright object"[12]. The understanding of this requirement in this sort of way grants the fulfillment of it by most of the independently written programs, which means that in effect most of them come under legal protection.

 The new bill doesn't introduce any new conditions in this field. Therefore one should expect that the actual protection will be held at the same low level.

4. Presenting of Individual Elements of a Program.

 In the case of a computer program it is essential to differentiate between elements protected and unprotected because of the possibility of using them for a new program. This is more important than in the other creative fields. Apparently this problem shouldn't become any source of doubts. According to general rules of the copyright law, a program comes under protection in this field if it shows the originality feature described above.

 Controversies arise in connection with the problem of what should be included in a traditional sense of form of a work and what should be included into its contents. One should not forget, that the copyright law does not protect the contents or the idea of a work.

 Here we come to the following problem. If we assume that the protection grawed to concerns one specific form of an instruction in a program (external code protection) only, then this kind of a protection will have a marginal significance, any other programmer by modifying slightly the same program would avoid responsibility by virtue of someone else's copyright law violation. However,if we accept the fact that the structure of a program comes under protection, is this not going to be equivalent to including the contents of a program into the copyright protection ?

Computer programs belong to literary works in the scientific - technical area. Very often their essence is to carry out scientific results by means of proving or verifying the scientific hypotheses. The characteristic feature of each scientific work is that it solves a certain problem, answers a certain question even if the author does not put this question clearly. One can always state the contents of a scientific work. In any paper the contents is presented in an abstract placed at the beginning of a work. There is an analogy between the language of computer programs and scientific works, such as mathematics as their language is formalized.

The contens of works in applied mathematics are problems of the utilization of theoretical (pure) mathematics into creation of abstract models describing and explaining the phenomena of the surrounding world. The contents of works can easily be differentiated from the solution, i.e. the form. In works concerning pure mathematics problems one can reasonably separate the contents from the external and internal form of a work. The external form depends on the agreed language and on the accepted convention of the way of writing mathematical works. The internal form includes the solution method, that is such elements as the course of reasoning, the sequence of logical elements as the course of reasoning, the sequence of logical operations, conclusions, proportions between general statements and detailed examples. Here the author's invention and talent are revealed - which are the features which determine the individuality of a scientific work. If a mathematical theorem were the contents of a work then the contents would always be formulated in an assumption and proposition. The internal form of a work represents the proof of a theorem.

 The solution of a programming problem is based on choosing the solution method, laying out an algorithm of a program i.e. a plan of utilization of this method and producing a description of all activities connected with this plan. The algorithm of a program is not identical with the mathematical one. The latter cannot be protected by the copyright law. The program algorithm determines, however, its internal structure, its internal form. Individualization of an external and internal form is connected with the existence of a programing style. Formal language (code) elements and formal structure of a program construct its external form. The algorithm is the internal form of a program and it should also come under the copyright protection. The contents of a program which contains a precise description of its purpose and of the problems it solves is beyond the copyright protection. New mathematical theorems which don't come under protection form a basis to create new algorithms including these theorems.

 One can accept the differentiation between the contents and the form of a computer program introduced on the basis of the Polish Copyright Law in force. The last Polish bill states - in oposittion to the earlier project - that the algorithm, the function of the program as well as processes can become the object of the copyright law. This regulation -in my opinion -can be acceptted[13].

5. Ownership of Copyright.

 Polish Copyright Law in force grants the author of a computer program all moral and economic rights, according to the general rule expressed in Art.7 paragraph 1. This legal rule enhances the meaning of contracts negotiated with the authors of the program, as in this way a person other than the author can ensure the exclusive right to the program.

Nevertheless, one has to point out, that wherever there are any doubts in connection with the lack of adequate clauses in the contract of employment (or a contract for performing a specified task) concluded with the author admitting the employer rights, courts may reason with the implied transfer of rights on an employee or with the purpose of the employment contracts or with customs or with the service relationship.

 The last Polish draft of the new law, accepting the general rule that the copyright law is vested with the author, introduces a different regulation of the computer program owner's rights created within the employment relations. In this case all the copyright economic rights belong to the employer if it is not stated otherwise in a written contract. The acquirement of the law by the employer has this effect that he becomes a owner of the copyright law even if there are no specific clauses in the contract of employment. Moral rights are also being transferred on behalf of the employer. The author cannot object to the distribution of his program. He is not allowed to take advantage of the right of exercising the supervision on the way a work is used. He is also deprived of the right of objection to any changes to his program and to the distribution of the altered program.

 The whole specific regulation described above concerns programs originating on the basis of employment relations and it concerns also custom made programs. If the program originates on the basis of a different contract than the employment contract ( for ex. a contract for performing a specified task) then the author will also have to take care of the specifics of the contract i.e. what rights are not being transferred on his behalf.
 
 

6. The Essence of the Copyright Law.

By force of Polish Copyright Law economic rights relate to the distribution and granting an authorized person legal exclusivity in using his/her work. There are certain particulars involved, such as the right to the reproduction of a work, the right to its distribution and the right to the use of translation works (adaptations), i.e. works created on the basis of a protected work. Copyright moral rights are in turn of the inalienable character and serve as a protection of emotional bonds between the author and his work. Into this category fall the following rights: the right to the authorship of a work, the right to making decisions about its first publications, the right to the integrity of a work based on the prohibition of the form and contents violation without the author's permission.

The contents of the author's rights is generally limited by regulations concerning limitations in public and private use which entitle to enter the author's domain without the permis sion of an authorized person ( monopoly) in certain situations.

 Before continuing further considerations one has to point out that the regulations concerning the contents of the copyright as well as the regulations in the Polish law concerning the permitted use are not adapted to the needs related to the utilization of computer programs. I am not going to dif ferentiate between the moral and economic rights in reference to computer programs, as they mix together in the case of certain rules. I will try to point out problems, whose solutions would call for far reaching changes in copyright law.
 
 

6.1. Problem of Reverse Engineering Done by the User.

 Reverse engineering of a program is a copyright infringement in these acts in which regulations grant the exclusive right to the work reproduction and to make adaptations by the author. The reverse engineering of a program is its translation and cannot be done without the author's permission. This legal situation is dealt with the Polish copyright law in force.

 It seems that the evolution of copyright legislation will tend towards accepting the possibility of executing reverse engineering by the user but under some conditions. The contents of presented earlier the EC Directive point to it. According to Art.6 the reverse engineering of an another person's program (independently of any stipulated limits) is permitted exclusively under the condition that:
 
 

1. such an activity is carried on by a licensed user, by another person authorized to use the program;
2. reverse engineering is limited to those parts of the program which are essential to obtain the compatibility of a new program with the old one and any information concerning those parts was not published at an earlier time or made accessible to an authorized person from 1);
3. information obtained by the way of reverse engineering may be used only for gaining compatibility with the independently used programs under the condition of the copyright law infringement with regard to the reverse engineered program.

6.2. The Problem of the Permissible modification of a Program.

The situation is more profitable for the computer program users who come under the new Polish law. If they legally have a program they may carry on a regular exploitation of a program for the personal use purpose and make changes and adaptations of the program, irrespective of the attitude of the copyright owner.
 
 

6.3. Permissibility of Making a Backup copy.

This is so on the basis of the Polish Act in force. According to Art.22 copying or reproducing in some other way is permitted for personal use only.

Presently these kinds of rules are being eliminated in copyright laws regulating program protection. This is the result of an anxiety about the exploitation of programs on a larger scale. The Polish bill permits to make one backup copy.
 
 

7. Infringement of Copyright.

 As far as the economic rights are concerned it gives two claims at the authorized person's disposal: a claim for indemnity and a claim for returning profits. It might be difficult to carry out these claims for reasons of the evidence. In a lawsuit a duty to provide evidence belongs to the party who wants to achieve legal goals from a given evidence. It would be easier to carry out claims if one could demand the disclosure of data which would make it possible to estimate the extent of infringement, the amount of profits etc. geined by an infringing person. At the same time, the lack of a claim for a takeover or destruction of illegally made copies can be noticed.

There are also two criminal regulations in the law that do not seem to be adequate with the present expectancies. Only the offense of plagiarism, thus the cases of appropriation of someone else's authorship is pursued by the public indictment. There is, however lack of any regulations concerning piracy.

The Polish Copyright Bill changes and supplements the catalog of these civil claims, which can be brought on in the case of the economic copyright law in several articles. And so, the author or his legal successor (for ex. a producer) may require an information and access to the documentation related to the compensation or profit claimed from the infringed person. The authorized person may claim the payment double as high as a suitable gratification instead of claiming the profits evading all evidence difficulties. Finally, the court will make desitions about the illegally made objects on which the work was stored.

 Corrections introduced into civil liability provisions seem to be right but criminal regulations enclosed in the new Copyright Bill may cause many doubts. These regulations do not take into account the basic threat of piratical producing of programs and distributing copies of protected programs, as well as the need of using crimnal means to cope with these doings[17]. Particularity, this project does not stipulate for introducing more severe criminal liability of privacy in comparison with "the other author's offenses sanctions". It seems that at the same time criminal liability of all, even meaningless infringement of moral and material rights was taken into account. Besides, all the offenses mentioned in the act were to be suad by private accusation. This kind of regulation reduces the chance that a prosecutor will take an active stand in this matter (i.e. in the matter of coping with computer piracy).
 
 

8. Duration of the Author's Protection of Computer Programs.

On the grounds of the Polish Law in force the protection timespan is 25 years after the author s death. The new bill provides that the copyright economic rights to the program will last 50 years since the moment of its creation. One can argue with this solution as it will prolong the protection period unnecessarily. Surely, the majority of programs do not require such a long protection. There are some doubts though of formal and legal type (unifotmity with Bern Convention), as to its shortening.
 
 

9. Final Remarks.

 The new Polish project presents a very broad definition of the object of the copyright law. It is then "each form of manifestation of the intellectual output bearing the individual character of its creator". Undoubtedly, this definition pertains to a sonate, a monument, and software as well. Besides, computer programs are inccluded in the detailes list of works under protection; next to literary, photographic and cartographic works.

 This protection is granted to the author on the basis of the law itself; it does not require any form of registration. The original author has certain moral rights in relation to his program. He has a right to the authorship of his work (to mark the program with his name) and the right to retained integrity of his work, based on prohibition of form and contents violation. The author may take decisions concerning the distribution of the given program, and creating a positive "image" of his work. In the case of software, the original author's right to supervise the application and utilization of his work was excluded. In my opinion, the author's right to integrity of form and contents of his work will be in fact violated by the employers. Such situation arises because one of the articles in the proposed law claims that "the original author is not in the position to object to adaptations and modifications to the program code or to the program specification introduced by the employer".

 The seperate matter are the economic rights of the original owner. They include the financial gains obtained from distribution of a given work. These rights are vested both with the author and the employer if the computer program was created as an assignment or in the course of the employment contract. The proposed bill limits the rights of the users of computer programs. Thus, a user is only allowed to adapt the program to his specific needs and to make one backup copy.

 According to the proposed law, the rights of the original author are subjected to certain limitations. The programmer is not allowed to "renounce or cancel the contract for the benefit of his creative capacity". On the other hand, the new law does not limit the programmer's right to renounce the contract for distribution of the program in case the owner did not start the distribution at an appoited time. However, it does not include the programmers who produced the software in the course of their employment contracts.

 To summarize: In the new project of the Polish Copyright Law we can still discern certain points of inconsistence.

 On the other hand, two aspects call for a positive evaluation. First; the new copyright law protects the rights of software producers and makes a strong prohibition against illegal copying. Second; by the force of the new law, computer programmers are vested with extensive rights. Their position is equal to that of other original authors, for example architects. These factors may bring about the emergence of the software market. They may also create and propagate the new "image" of a programmer - as a creator living on reyalties from the sales revenues.

 The analysis of the suggested solutions in the Polish bill differs from the EC Directive. The EC Council grants stronger protection than the Polish project. Mainly it concerns those parts of the directives, which suggest applying stronger requirements when estimating the originality of a program and more limited reverse engineering than in Polish version of the bill. It seems to me that this project is not the last one and that the next ones will be more corresponding to European standards.

[2] Copyright USA - US Code, Cong. and Administrative News 1982, 6460 - 6482; M.Radcliffe, Recent US Developments in Copyright Law Related to Computer Software, European Intellectual Property Review (EIPR) 1986, 105-106.[3] Law Amending Provision in the Field of Copyright (of June 24, 1985), Copyright 1985/11; M.Lehmann (Hrsg), Rechtsschutz und Verwertung von Computerprogrammen, Köln 1988.

[4] Law on Authors, Rights and on the Right of Performers, Producers of Phonographs and Videograms and Audiovisual Communication Enterprises (No 85-660, of July 3, 1985), Copyright 1985/10; F.Taubol, Protection of Computer Programs in France, EIPR 1986, p.17; A.Lucas, Le droit de l'informatique, Presses Universitaires de France 1987.

[5] Law for Partial Amendments to the Copyright Law (No 64, of May 23, 1986), Copyright 1987/3; J.D.Karjala, Protection of Computer Programs under Japanese Copyright Law, EIPR 1986, 105-106.

[6] For ex. in Austria, Italy, Portugal, Swizerland, Netherlands.

[7] See: 1991 Update: International Legal Protection for Software, Chart, Fenwick and West (polo Alto/California, Washington, D.C.) 1991.

[8] Copyright Law 1952, of July 10, Dz.U. 1975, No. 34; See: S.Soltysinski, Protection of Computer Programs: Comparative and International Aspects, IIC 1990, 1; A.Kopff, The Influence of Technical Progress on Development of Creativity and the Law of Intellectual Property, the Hague 1985.

[9] Treaty between the Republic of Poland and the USA Concerning Business and Economic Relations; International Legal Materials 1990, vol.XXIX, No 5, Sept. 1990.

[10] Official Journal EEC, No L. 122/1991 from 17.05.1991; M.Lehmann, Die Europäische Rechtlinie ûber den Schutz von Computerprogrammen, GRUR Int. 1991, 327; H.W.Moritz, Die EG-Rechtsschutz von Computerprogrammen im Lichte der Bestrebung zur Harmonisierung des Urheberrechts, GRUR Int. 1991, 697; T.C.Vinje, Die EG-Rechtlinie zum Schutz von Computerprogrammen und die Frage der Interoperabilität, GRUR Int.1992, 250.

[11] Juridical decisions from 9.05.1985, GRUR 1985, 1041; See: H.Haberstumpf, Der urheberrechtliche Schutz von Computerprogrammen, /in/ Rechtschutz und Verwetung von Computerorogramma, op.cit.,p.45.

[12] Polish Supreme Court Statements from 5.03.1971 (OSPiKA 1972, No.5).

[13] See: H.Haberstumpf, Computerprogramm und Algorithmus, UFITA 1083, No. 95, 221.

[14] See: B.Keplinger, Autorship in the Information Age, Copyright 1985, 126.

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