Copyright issues relating to computer programs

I. The extent of software protection

According to Article 7 para. (1) of Law No 8/1996, "The subject matter of copyright is original works of intellectual creation in the literary, artistic or scientific field, whatever the mode of creation, mode or form of expression and regardless of their value and purpose, such as: a) literary and publicistic writings, lectures, sermons, speeches, lectures and any other written or oral works, as well as computer programs".

Specific copyright protection in this area:

• includes any expression of a program, application programs, and operating systems, expressed in any language, whether source code or object code, preliminary design material, and manuals;
• excludes the ideas, processes, methods of operation, mathematical concepts, and principles underlying any element of a computer program, including those underlying its interfaces;

Although the above-mentioned legal text refers to original works, copyright also confers protection to derivative works (Art. 8 Law 8/1996). A work inspired by earlier work (adaptation or translation) may be original to the extent that it bears the imprint of the translator or the person making the adaptation - the same applies to computer programs.

2. Protection for the copyright holder of a computer program

The owner of the copyright relating to a computer program benefits from "common law" patrimonial and non-patrimonial rights, such as:

- the right to decide whether, how, and when the work will be made known to the public (art. 10 lit. a Law 8/1996);

- the right to claim recognition of authorship of the work (Art. 10 lit. b Law 8/1996);

- the right to decide under which name the work will be made known to the public (art. 10 letter c Law 8/1996);

- the right to claim respect for the integrity of the work and to object to any alteration and any damage to the work if it is prejudicial to his honor or reputation (Art. 10 letter d Law 8/1996);

- the right to authorize or prohibit the reproduction of the work, the distribution of the work, the import for domestic sale of copies made, with the consent of the author, after the work, the rental of the work, the lending of the work (art. 13 lit. a - e of Law 8/1996), etc.

Additionally and specifically, the copyright holder of a computer program has the right to make and authorise:

- the permanent or temporary reproduction of a program, in whole or in part, by any means and in any form, including when the reproduction is by installation, storage, running or execution, display or transmission over a network;

- the translation, adaptation, arrangement and any other transformation of a computer program, as well as the reproduction of the result of these operations, without prejudice to the rights of the person transforming the computer program;

- distribution and rental of the original or copies, in any form, of a computer program. 

However, according to Article 74 para. (2) of Law 8/1996, after the first sale of a copy of a computer program on the domestic market, the exclusive right to authorize the distribution of this copy on the domestic market is exhausted. In other words, in this hypothesis, the copyright holder waives the exclusive right to authorize the distribution of a copy of the program, but this waiver is not, as a rule, free of charge.

III. The subject of copyright

Although the notion of "author" refers to natural persons, in considering their creative capacity, the copyright holder can be both a natural person and a legal person.

A legal person may be the copyright owner if it has acquired the right by succession or by contract. In the contractual acquisition option, copyright can also arise directly in the legal person's assets, without the need for a transfer of copyright.

 With reference to the second sentence, we also refer to the provisions of Article 75 of Law 8/1996, according to which "In the absence of a clause to the contrary, the copyright on computer programs created by one or more employees in the exercise of their duties or on the instructions of the employer belongs to the latter".

Thus, the copyright holder in this matter may be the author himself, but in most cases, it is the employer or the liable person, whether a natural or legal person.

To sum up, the author is the natural person who created the program, but the law offers the possibility that copyright may be transferred by succession or by contract to another person, this time a natural or legal person, who thus acquires the quality of copyright holder, thus enjoying the protection offered by the law.

IV. Acts that may be performed without the authorization of the copyright owner

The provisions of Articles 77 - 81 of Law No 8/1996 regulate the conditions under which the user of a computer program may perform certain acts on the program without the authorization of the copyright holder.

Thus, acts of reproduction, acts of translation, acts of arrangement, acts of transformation of the computer program, as well as those necessary to reproduce the result of these operations, insofar as they are necessary for the use of the computer program in a manner appropriate to its purpose or for the correction of errors, are not subject to authorization by the copyright holder.

In addition, to protect the rights holder in the event that he does not have access to the original program, Art. 78 para. (1) provides that "The authorized user of a computer program may make, without the authorization of the copyright holder, an archival or back-up copy, to the extent necessary to ensure the use of the program".

Further, Article 78 para. (2) Law 8/1996 provides that "The authorized user of a copy of a computer program may, without the authorization of the copyright holder, analyze, study or test the functioning of the program, in order to determine the ideas and principles underlying any element of the program, when performing any operations of installation, display, running or execution, transmission or storage of the program, which he is entitled to perform".

Of course, the purpose of this exception is to give the rightful user the opportunity to use the software for its intended purpose.

Last but not least, Article 79 of Law 8/1996 regulates the right of decomposition, which consists of the fact that "The authorization of the copyright holder is not required when the reproduction of the code or the translation of the form of this code is indispensable for obtaining the information necessary for the interoperability of a computer program with other computer programs".

Thus, reproduction of the code or translation of its form does not depend on the authorization of the right holder, if it is fundamental to the operability with another computer program.

It should be borne in mind that, under Article 81 of Law 8/1996, the right of decomposition cannot be exercised if it causes damage to the copyright holder or prevents the normal use of the computer program.

V. Case law

Given the lack of a concrete definition of "computer program", there have been disputes over the components of a program that are protected by copyright.

In this regard, the European Court of Justice, in Case C-406/10, ruled that the programming language and functionality of a computer program do not constitute a form of expression of the computer program and are therefore not subject to the relevant legal rules.

In the Court's view, if we were to accept that the functionality of any computer program could be protected by copyright, this would lead to a possible monopolization of ideas, thereby jeopardizing technical progress and industrial development.

Further, in order to protect copyright, the court will have to assess the extent to which the computer program constitutes an original work or at least can be classified as a derivative work.

Due to the vague regulation of the notion of originality by the legislator, the judge will have a great power of appreciation, which will have to investigate to what extent the solutions, the ways are chosen by the author bear the mark of his personality, or whether he really had the possibility of choice to 

conclude that the personal imprint was possible and necessary[1].

VI. Conclusions

In conclusion, although national law does not provide an extensive set of rules on the protection of computer programs, it contains the necessary provisions to ensure the protection of both the copyright holder and the rightful user of a computer program.

The law provides for the possibility that copyright in a computer program may be transferred by assignment or inheritance, and the resulting copyright ownership enjoys legal protection under the conditions set out in the previous sections.

In order to ensure that the computer program is used for its intended purpose, the legislator has granted the legitimate user of the program greater freedom in terms of the acts he can undertake without the authorization of the copyright holder.

Thus, the legal rules establishing the legal regime of copyright on computer programs aim not only to protect the copyright holder but also to protect the rightful user of a program in the event of abusive conduct by the copyright holder.

MAXIM/ Associates

Av. Tejan Călina

17.06.2022

[1] V. Roș, Intellectual Property Law, Vol.I, Ed. C.H.Beck, Bucharest, 2016, p. 224