These days, computer programs are as protected as literary works

If you upload any data on a publicly available platform, make sure that you have the permission from the rights holder. Otherwise you risk sanctions for breaching copyright.

(Source: Sme)

The creation of copyright was the result of the upswing of printed media, that motivated the need for its complex regulation and protection [1]. Since the last century, copyright or any other intellectual property rights have experienced a large boom. In a relatively short period of time, this area underwent many challenges, mostly because of the creation of the so-called Information Society. This placed information and technical and scientific progress at top of society´s scale of values, and as a result society focuses more on computer technology, innovation and digitalization. From the copyright point of view, the classification of computer programs as intangible assets protected by copyright wasn´t at first accepted without objection, mostly because of the peculiarities necessary for computer program protection [2]. These days, computer programs are as protected as literary works, while the increased necessity for their protection resulted from the arrival of the World Wide Web and the Internet.

In Slovakia, a computer program is protected by copyright under law no° 185/2015 Coll., Copyright Law, as amended (hereinafter “Copyright Law”), which is, for the afore-mentioned reason, the most important legal text relating to software. Slovakia also implemented the directive 2009/24/EC of the European Parliament and of the Council on the legal protection of computer programs (hereinafter “directive on computer programs”) that sets the rules to ensure the compliance of the legal texts of the European Union concerning copyright and related rights in the internal market, into its legal order. The main incentive was to ensure digital and cross-border usage of this protected content, so that the rights of the rights holders could be protected in other member states, and also because the Internet isn´t restricted by physical borders.

Darina Parobeková,  Associate Ružička Csekes Darina Parobeková, Associate Ružička Csekes

With the arrival of the CD and DVD technology, pirate computer programs were illegally spread mostly on physical carriers [3]. Even now pirate copies of computer programs exist but this way of the illegal distribution of copyrighted works has faded. A great majority of the population have gained almost unlimited access to the Internet through which the distribution of illegal content moved from the so-called offline, to the online environment.

Ways of spreading illegal software and other copyrighted work differ, depending on whether the data are made available in a centralized manner in one place (with a clearly identified IP address from which the final user downloads such data) or through a decentralized system (a typical example is peer-to-peer application). Centralized systems work in such a way that usually allows anyone to download a whole file that has been uploaded in one storage site. This is because the providers of such websites directly violate copyrights by providing content without the rights holder’s permission and are exposed to higher risks. On peer-to-peer platforms, the users of the network stand not only as recipients but figure also as active servers that share their data to other users [4].

One of the first interesting cases related to the application of a peer-to-peer program was the Napster protocol. Created by a young, at the time only 17 years old, Shawn Fanning [5], Napster should have served as the administration of a social network for music lovers. It allowed users to exchange mp3 tracks with one another. Needless to say, the majority of the users didn´t have the rights holder’s permission to do so. As was later revealed, another of Napster´s problems were that the host kept the track list of every user, shared by them on the network, and introduced individual users to one another by creating a catalogue of shared files. In February 2001, Napster had 26,4 million users [6], which several artists in the music industry didn´t like. Regarding the significant influence that Napster gained, several music publishers decided to sue the company. During the judicial proceedings, the rights holders proved that there were tens of thousands of illegal files in the Napster network, that had to be blocked afterwards [7].

Napster wasn´t the only provider using a peer-to-peer platform. In the years to follow, many similar networks, sharing legal and illegal software and other copyrighted works, were created. The question of providing a peer-to-peer platform wasn´t solved with the Napster case and this problem was brought to the European courts and to the Court of Justice of the European Union.

In the recent case, Stichting Brein against Ziggo BV, XS4ALL Internet BV also known as the “Pirate Bay” suit [8], the Court of Justice inquired into “public transmission” issues within the meaning of Article 3(1) directive no°2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society as last amended (“InfoSoc directive), also implemented in the Copyright Law.

In this context, it was necessary to define if public transmission means making accessible and administering a platform of the mutual sharing on the Internet, which by indexing the metadata concerning protected works and providing the search engine allows the users of the platform to find files and mutually share them within the shared data network between the users (peer-to-peer) [9].

Directive no°2000/31/EC on certain legal aspects of the information society services, electronic commerce (hereinafter “Directive on electronic commerce”) in particular allowed that providers on the Internet weren´t responsible for breaching copyright and other rights on their platforms under the condition that they do not actively participate in sharing the illegal content. Providers use, and often misuse, this protection with the intention to avoid responsibility for breaching copyright and other rights to a significant extent.

With the passed judgement, the Court of Justice of the European Union stressed that since the administrators of the mutual sharing platforms figured in an active position and among other things, created file indexes, categorized and deleted files with their actions regarding the considerable number of users, they fulfilled the regulations of the InfoSoc directive. Administrators thus knowingly allowed or rather carried out public transmission of protected works without the rights holders´ permission, by which they breached their copyrights. According some specialists, the “Pirate Bay” suit will have a significant impact on future cases.

The position of entrepreneurial subjects is sealed for now. Anyone in the position of administrator of a platform who knowingly helps or illegally shares software or other copyrighted work, is in breach of Copyright Law. Even though the practice of the court in Slovakia on this matter isn´t unified, it is reasonable to think that in the case of a proven breach of copyright, the courts will impose heavy fines. For example, the French district court in a recent case imposed a fine of 2 Euros on the infringer for every illegal sharing of copyrighted work, with the overall loss representing 13 million Euros.

However, the above-mentioned cases are a mere drop in the ocean. Many new and many already existing legal questions, related to the usage of the Internet and the protection of copyrighted works, yet need to be answered.

What does it mean for us, everyday users of the Internet and different platforms? Every Internet user should carefully read the information upon registration to avoid unnecessary complications. Currently, Copyright Law grants an exception to individuals for so-called “copies for personal need”. This means data for personal use without the author´s permission, which cannot be used further, for example in their business. If these legal conditions are met, the individual won´t be in breach of copyright.

What should we do in practice?

If you are a law-abiding person or entrepreneur, always ask for the licence agreement and carefully read it. It seems that today it is common practice for no one to read licences, especially electronic ones and they tend to go straight to “I agree”. However, it is important to at least briefly read them and if you don´t understand something, to contact the corresponding person.

If you upload any data on a publicly available platform, make sure that you have the permission from the rights holder. Otherwise you risk sanctions for breaching copyright.

If you are an individual and want to download data from the Internet, always make sure that you are not on a pirate server and that the provider has the licence necessary for sharing the copyright work to the extent necessary. If you upload any data on a publicly available platform, make sure that the rights holder has given you permission to do so.

In the end, compliance with copyright doesn´t have to be so complicated. You only have to be careful and give up a few minutes of your time to find the information about the copyrighted work in question. In this way, we show respect to the authors´ creative activities and ensure they receive their well-deserved reward.

[1] Information Technology Law, The Law and Society, 3rd edition, Andrew Murray, Oxford University press, r. 2016.

[2] Ochrana autorských práv v informační společnosti, Ján Kříž, Linde Praha a.s. – právnické a ekonomické nakladatelství a kníhkupectví Bohumily Hořínkové a Jana Tuláča, str. 45, r. 1999.

[3] Information Technology Law, The Law and Society, 3rd edition, Andrew Murray, Oxford University press, str. 242, r. 2016.

[4] Internet a autorské právo, 2. aktualizované a rožšířené vydání, Jiří Čermák, Linde Praha, a.s. . – právnické a ekonomické nakladatelství a kníhkupectví Bohumily Hořínkové a Jana Tuláča, str. 92, r. 2003.

[5] Information Technology Law, The Law and Society, 3rd edition, Andrew Murray, Oxford University press, str. 298, r. 2016.

[6],+but+New+File-Sharing+Alternatives...-a076646755, link zo dňa 30.08.2017.

[7] Information Technology Law, The Law and Society, 3rd edition, Andrew Murray, Oxford University press, str. 303, r. 2016.

[8] Judgment of the court (Second Chamber) from 14.07.2017, C – 610/15, Stichtig Brein against Ziggo BV, XS4ALL Interent BV procedure.

[9] Ibid.

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