Sommario: 1. Introduction. – 2. Analysis of the regulatory environment, a process still in the making . – 3. The judgment C-128/11 and the affirmation of the principle of distribution. – 4. The effects erga omnes the Court’s ruling. – 5. Additional considerations on the effects of the judgment, and the & lt; & lt; shock & gt; & gt; copyright. – 6. The decision of the court as a concrete basis for the formation of a Grundnorm .
1. Among the recent decisions, falling within the multiverse of the Information Technology Law, who have had greater resonance, there is definitely one of the Grand Chamber of the European Court of Justice No. C-128/11 of 3 July 2012 [1], known to most as & lt; & lt; Case Oracle & gt; & gt;.
2. Before we delve into the substance of the judgment, it is necessary, however, to analyze the regulatory environment in which there is, and therefore it is good to fix once an important date for the & lt; & lt; protection of the software & gt; & gt ;, that of March 16, 2000, when it was approved in the rules of the Community (Decision 2000/278 / EC), the & lt; & lt; WIPO Treaty [2] Copyright & gt; & gt; (Hereinafter & lt; & lt; Treaty on Copyright & gt; & gt;) to which Article 4 thus reads: & lt; & lt; Computer programs are protected as literary works under Article 2 of the Berne Convention [ 3]. Such protection applies to any mode or form of expression of a computer program & gt; & gt ;.
But the decision to locate in the area of computer programs works protected by copyright has been characterized by a long legal debate, which resulted in the exclusion of the first software from the category of inventions which may be patented, which took place the sphere of Euopean Patent Convention of Monaco of Bavaria [4], and then, later, also in implementing the Directive 1991/250 / EEC, that art. 1 states that & lt; & lt; Member States shall protect computer programs by copyright, as literary works under the Berne Convention for the Protection of Literary and Artistic Works & gt; & gt;.
seal all was then Directive 2009/24 / EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs, aimed at providing a uniform application in all member states of copyright in àmbito computer, based on what happened in the United States of America with the Computer Software Amendment Act [5] and in many English-speaking countries.
Taking a step back, and coming back to the years that led to the formation of the Treaty, it should be noted that soon, however, it was realized that what was being created was not a process analog quite complete, so much so that the legislator warned from the outset the need to diversify the tutelage of software from that of literary works, by introducing Article 6 of the Treaty on copyright, in the first paragraph, an important concept, since at the time no stranger to copyright itself: & lt; & lt; The authors of literary and artistic works have the exclusive right of authorizing the making available to the public the original and copies of their works through sale or through any other transfer of property & gt; & gt ;. This paragraph was therefore introduced the cd & Lt; & lt; Distribution right & gt; & gt ;, in which it was adjusted also its principle of exhaustion in the next paragraph: & lt; & lt; Nothing in this Treaty shall affect the freedom of Contracting Parties to determine any conditions in which it takes place exhaustion of the rights recognized in paragraph 1) after the first sale or other transaction of transfer of ownership of the original or a copy of the work, carried out with the authorization of the author & gt; & gt;.
The true extent of this rule probably was not quite grasped, at least at first, and probably thanks to the & lt; & lt; Case Oracle & gt; & gt; It has managed to appreciate the foresight typical of a legislator who aims to regulate the interests of the plurality of the associates.
But before we get into specifics, it should be emphasized that in reality this process of diversification can not be considered concluded with the introduction of the principle of distribution, but rather should be seen as a process still in progress, certainly long and complex, it will take some time before reaching a conclusion, so much so that they are still in discussion all those divergences to imperfect omologabilità of Literary computer programs, recorded in doctrine.
To support today, therefore, on the basis of the rules on recall, the software entities constitute verifiable perfectly to literary works, it raises many perplexities. Part of the doctrine points out that the requirements would miss their inventions can be protected, such as originality, novelty and industrial applicability [6]. But you should be careful not to read these considerations in favor of industrial law. The exclusion made in Monaco [7] is not entirely devoid of foundations. In this regard, in fact, it has been argued that this exclusion, pursuant to art. 45 cpi, constitute the proof more faithful dell’ontologica connotation of software in terms of their own invention.
And ‘therefore clear that the choice of the European legislator is born from’ urgent need to protect evenly ambit Community discipline of computer programs, identifying thus in copyright discipline more appropriate to regulate, in fact, the interests of those who, like the software house , investing heavily in the production of computer products.
And this choice may be considered acceptable, but perhaps only in part. To arouse first doubts is the claim inherent right in Directive 2009/24 / EC, which includes the term & lt; & lt; software & gt; & gt; also the preparatory material used for the design of the software themselves. We must consider, however, that such material is constituted by a series of processes of mathematical calculation, codes, diagrams and / or algorithms that, in reality, would seem to be difficult to be assimilated to that category comprises literary, artistic, cinematographic and so on. If you come into contact with a preparatory draft of ‘Last Supper by Leonardo da Vinci, or the minutes of Manzoni, they, according to the Common sensu , are easily distinguishable and categorized as intellectual subject the protection of copyright, which instead would be difficult to achieve for a series of letters and numbers, apparently meaningless, comprising the preparatory material for a computer program.
On this point the most authoritative doctrine us recalls that the software is embodied in a set of instructions to the computer to allow it to perform certain functional operations to the achievement of specific results and that these instructions are to materialize in cd & Lt; & lt; object code & gt; & gt; which is basically the translation & lt; & lt; machine language & gt; & gt; antecedent of expression of the intellectual creation of the post based in language yes technical and evolved, but that is still understandable to man: the cd & Lt; & lt; source program & gt; & gt; [8], and then raises some important questions about the appropriateness of the discipline of Copyright with respect to the protection of computer programs, in particular as regards its object code. It is believed that this takes the form of pulses that objectively assume a form of expression is difficult to place in the idea of traditional literary work protected, and reflects a clear deficit of communication skills, incompatible with the logic rules of protection of intellectual property dictated the l. No. 633 of 1941 [9].
The same doctrine also highlights further & lt; & lt; uncertainties interpretative & gt; & gt; the provision of law to protect the preparatory material of a software .
It argues that it is difficult, overall evaluations and calculation procedures designed to take in a complete form program still in the making the preparatory material which the law grants protection, and it also shows that the provision in question refers to all the elements that identify the core concept that will evolve in the program, with so , one of them organic and completeness, so then going to believe the protectable cd flow chart, as well as the C.D. block diagram, but not the steps of description and analysis of the problem and breaking it down into sub elementary problems (method called Top-Down ) [10].
writer, the above considerations seem hardly questionable, and therefore widely shared. An analysis so deep and specific nature of a computer program, can only rise to a certain skepticism on the effectiveness of the protection placed by Copyright. In this regard, it is the hope of sustainable Professor John Head in a & lt; & lt; expansion “in fact” ball “monopoly” over the boundaries set by the. 633 1941 & gt; & gt; since it feels not so easy & lt; & lt; orient the discipline of protection solely on the expressive form of the software, without invested $ content & gt; & gt;.
3. E ‘in the light of this premise that must read the judgment C-128/11, in which the Court ruled on the preliminary question of the interpretation of Articles. 4, par. 2 and 5, par. 1 Directive 2009/24 / EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs. (OJ L 111, page 16).
The reference was made in the course of proceedings between the Oracle International Corporation [11] (hereinafter referred to as & lt; & lt ; Oracle & gt; & gt;) and UsedSoft GmbH [12] (hereinafter referred to as & lt; & lt; UsedSoft & gt; & gt;) on the marketing by the UsedSoft licensing computer programs used in the Oracle .
The Court ruled that Article. 4, par. 2 of Directive 2009/24 / EC must be interpreted as meaning that the right of distribution of a copy of a computer program is exhausted if the holder of copyright, which has approved, possibly even free of charge, the download copy of a computer support via Internet , has also contributed, against payment of a price to enabling to receive a remuneration corresponding to the economic value of the copy of the work of he owns the right to use the copy itself indefinitely.
With the same pronunciation has also held that Articles. 4, par. 2, and 5, par. 1, of the above Directive, must be interpreted as meaning that, in the case of resale of a license to use that involves the resale of a copy of a computer program downloaded from Internet of the holder copyright license that had been initially granted to the first purchaser from the same holder indefinitely and against payment of a price intended to enable the latter to obtain a remuneration corresponding to the economic value of the copy of his work, the second buyer of the same, like all his subsequent purchaser, can avail of the exhaustion of the distribution right under art. 4, par. 2 of that directive, and consequently can be regarded as a legitimate purchaser of a copy of a computer program, in accordance with art. 5 par. 1, of the Directive, benefiting from the reproduction right provided for in the latter provision.
Without entering here in the analysis of this specific well-known case, and volendone highlight, rather, the general scope of its effects, which in fact in addition to the Oracle and the UsedSoft appear facing the entire European market of software, it should be emphasized first of the legal reasoning followed by the Court of Justice in that judgment.
So should first clarify that the Oracle has set his defense claiming not to proceed with the sale of copies of the software , but rather to put them freely available to all customers who have concluded a specific license agreement, a sequel which would came into possession of the & lt; & lt; access key & gt; & gt; in order to perform the download free from their website web .
The Court however considered implausible this defense argument, believing impossible to separate the time of download from the signing of the license agreement, pointing out that if you effettuasse the download of a program without entering into a licensing agreement, the program itself could not be used by those who legitimately I’ve downloaded [13].
And as the first result of the affirmation of the principle of indivisibility of the license agreement, and download , is the abolition of the distinction, formed in practice, including the sale of software on physical media and the client / server [14] . And this suggests a reflection.
4. Previously it was reported that the decision of the European legislator in the protection of computer programs by copyright was made because it was identified in the discipline more appropriate to adjust the interests of those who had significant investments in the production of computer products.
But if you go to analyze the scope of this decision of the Court of Justice, there may not realize that they are not here to be governed solely and exclusively the interests of the parties involved, but rather those of all citizens. The Court is clearly separated from the rigor of the classical scheme of copyright, stating, in fact, a new way to go.
It is clear, in fact, that with this ruling the Court should create the conditions for regulating the supposed birth of a second-hand market of software, also of type client / server , Wherefore should not cause any surprise, as there was a similar result for other intellectual property (think, for example, the market for books or movies used).
Moreover you have to consider that now, in addition to professional activities, to optimize the ‘organization of its business also almost all of the activities open to the public are increasingly entrusting the most varied software . Such as restaurants or bars that want to manage orders electronically, or as stores of clothing or shoes that want to control their inventory, or as a refueling who want to manage a collection loyalty points. And the list could be extended also to the software within the spheres of everyday city life, such as software to control traffic lights or trains, and privacy each partner, such as software satellite navigation, increasingly present in the equipment of cars, or as those of management of home appliances (in fact today it is starting to talk more and more of & lt; & lt ; Internet of things & gt; & gt;). And the list could go on and on, but this does not seem to be the most appropriate venue. In short, the software is becoming more and more part of everyday life of each citizen of the Union ‘, and for this reason it is highly conceivable that soon you will feel more and more the need for the emergence of a real its market & lt; & lt; second hand & gt; & gt; (Think of a person who decides to open a restaurant, and to limit the start-up costs, decide to purchase a software used), who coined a neologism, but perhaps that might be more close to a poetic license, we could call as a market of & lt; & lt; second click & gt; & gt ;.
A further proof of this key reading then there is the clear statement of the Court [15] under which it removed any doubt about the status of & lt; & lt; lawful acquirer & gt; & gt; subsequent buyers of a computer program, and that the holder of the copyright of a software may or may not, by means of specific contractual provisions, oppose the resale of the software the same.
The Court states that & lt; & lt; the distribution right of the owner of copyright runs out, under Article 4, paragraph 2 of Directive 2009/24, with the first sale in the Union, by the owner himself or with his consent, any copy, tangible or intangible, its computer program & gt; & gt; and for these reasons the Court considered to have assumed that & lt; & lt; the second buyer of the copy, as any subsequent purchaser, constitutes a “lawful acquirer” of the copy itself, in accordance with Article 5, paragraph 1, Directive 2009/24 & gt; & gt;.
5. In light of the foregoing, the Court of Justice has thus legitimized the commercial activity of UsedSoft , then we would be right to define as the pioneer in the market for & lt; & lt; second click & gt; & gt; of software in the ‘European Union. In virtue of this, in this writer has formed a strong conviction that the purpose of the resolution of this case, determining it was the intervention of the legislature, that if he had not introduced, in its time, the ranks of copyright, the CD principle of distribution, up to the time unknown, would have seen today the outcome of the case certainly flipped.
But as already stated, this is not enough. The multiverse of information law, in fact, require additional regulatory safeguards and specifically the protection of the software can not and must not remain anchored in toto to copyright, and therefore would seem to make the necessary continuation of this work of & lt; & lt; regulatory integration & gt; & gt; initiated by the European legislator.
In support of this claim can be considered the numerous interpretative doubts born in doctrine sequel to the choice of the Italian legislature to adapt the rules of copyright to computer programs, on the basis of what happened in most English-speaking countries. There are those who accepted this choice as a distortion of copyright [16], or who even considered that the idea of bringing the programs to literature was so farfetched to merit even consideration [17]. It actually does not seem so difficult to share these ideas.
Consider, for example, the problem of the conditions of originality and creativity, essential requirements for the acquisition of copyright on an original work. On the market today there are hundreds of software that share the same codes, and the copyright here does not provide some type of protection more appropriate, whereas the existing provisions [18] seem somewhat sketchy, indicating that the copyright it would acquire as a result of the creation of the computer program, provided that the latter represents an original result of intellectual activity of those who built it. E ‘on this way, in particular, that come the more serious questions.
It has been already stated, that is embodied in a software source code (developed by man), and object code (compiled by machine), and the difficulty of assimilating the latter to an intellectual work. But on the other hand go to protect exclusively the first would not have made much sense, mail and given the nature of the final product (ie as the result of the processing object code).
It remains doubtful and incomplete, therefore, the provision of the law that in encompass the protection of copyright for the software & lt; & lt; in any form expressed & gt; & gt ;, excludes (ex. art. 2, n. 8, ln 633 of 1941) & lt; & lt; the principles which underlie any element of a program [...] & gt; & gt;.
In fact, copyright does not protect ideas inspiring generate intellectual property, it is more and must take into account that within a software is almost impossible to distinguish the cd & Lt; & lt; algorithm solution & gt; & gt; the form of expression in which the program is presented, and therefore it is likewise impossible to delineate the border between the content and the ideas behind a software .
It would seem, therefore, be very topical idea of who, in the past, argued that & lt; & lt; apply a protection whose object is a pure form to entities in which the form is almost entirely necessitated by the content means smuggling, under the nomen juris of copyright protection that relates to the content of the program, a set of principles and ideas that go beyond the object of this right by definition & gt; & gt; [19].
It is therefore for these reasons that the Court’s ruling in the & lt; & lt; case Oracle & gt; & gt ;, having, as mentioned, departed from the formal rigidity of copyright, it can be certainly consider as a real shock to copyright itself.
6. Today more than ever is to be noted that with the proliferation of new technologies, and in particular of those portable, as smartphone and tablet , the definition of software , certainly can not remain anchored in principles now dated (think that the definition of software was the result of many years of development which ended in 1984 in Canberra [20]) and consequently its protection should be reviewed.
The Copyright, therefore, would not appear today represent the most suitable means of protection for the software . Neither it would seem appropriate to pursue analogy protection more adaptable to fain. It would seem appropriate, rather, on the basis of the considerations just made, creating a form of protection ad hoc , without assimilating the software or the intellectual property, nor to those of ‘industry, but by creating a new category.
And although it may seem to work as onerous, having to create, to be able to categorize the software , a hybrid fusion between the right ‘copyright and industrial law, appears nonetheless appropriate to make this effort to offer the most appropriate type of protection.
As we have seen, there are many illustrious authors who do not believe fully valid email protection law copyright. And there are obvious gaps and all the more obvious difficulties in comparing the software to an intellectual work.
And although the series today, especially in Italy, is still at the low, the rest of Europe is steadily increasing, and it is therefore impossible to remain in this state of limbo, and the European legislator should therefore, in compliance with its delicate and important role, to step forward and try to minimize the legitimate questions of interpretation arising from the current legislation fragmentary and incomplete.
The series, however, is bound incrementing more and more, we think that soon everyone will be able to complete a purchase via the Internet, as well as movable property (as is already happening on a large scale) even more expensive goods such as cars or motorcycles, or even also of real estate. Also soon it will be able to open bank accounts, enter into contracts or insurance online , without necessarily having to go into a branch, all simply by authenticating with your digital signature.
Today, then, for every activity of life in common, there are one or more software that can adjust electronically conducting. Let the right to ignore all this, could represent a serious and dangerous risk for all EU citizens’. And why in the realization of this Grundnorm , which regulates the general interests, can not assume the role of leader in the Italian legislature, always guardian of the origins of the law, and author of multiple standards-looking?
For more information:
- The Industrial Law. Bimonthly of doctrine and jurisprudence on intellectual creations and competition.
(American Lawyer, 4 August 2015. Article Nicola Nappi )
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[1] Court giust., July 3, 2012, c. 128/11, UsedSoft GmbH c. Oracle International Corp. , in The Italian Forum, 2012, p. 377 et seq.
[2] WIPO: World Intellectual Property Organization.
[3] The Berne Convention is an international agreement that establishes the mutual recognition of copyright among participating nations.
[4] European Patent Convention (Monaco Convention on the Grant of European Patents), 1974 It is a treaty by which art. 52, par. 2, paragraph c, it was sanctioned the exclusion of the software from the list of inventions capable of being patented
[5] The Computer Software Amendment Act is the act by which computer programs into the US, in 1980, were subject to the protection afforded to intellectual property from copyright .
[6] On this point we recommend reading G. Head, Legal protection of software in AA.VV. Manual IT law, Naples, 2004, p. 162.
[7] The reference is to the European Patent Convention (Convention on the Granting of Monaco European Patents).
[8] G. Head, Legal protection of the software in AA. VV. Manual IT law, Naples, 2004, p. 164.
[9] Law on provisions on the protection of copyright and other rights relating to its exercise.
[10] G. Head, Legal protection of the software in AA.VV. Manual IT law, Naples, 2004, p. 165.
[11] Oracle is one of the most software house involved in the development and distribution of computer programs both on a physical medium, is & lt; & lt; client / server & gt; & gt;.
[12] UsedSoft it is a company providing both licenses used & lt; & lt; client / server & gt; & gt; that allow you to use the programs of the Oracle , both quota licenses for additional users (if a license is for a number of users exceeds the requirements of the initial purchaser).
[13]. paragraphs 43 and 44 of the judgment UsedSoft GmbH v. Oracle International Corp. , Case C-128/11.
[14] The sale of a software-type & lt; & lt; client / server & gt; & gt; corresponded to the sale of a software on intangible support that provides for the connection of a client computer to computer server for the use of a given service .
[15] See. Points 77 to 80 of the judgment UsedSoft GmbH v. Oracle International Corp. , Case C-128/11.
[16] V. Franceschelli, The EC Directive Protection of the software : triumph and distortion of copyright, in Journal of Industrial Law, 1991, I, p. 169.
[17] G. Florida, protection of the software in the system of exclusive creations on intellectuals, in information law and computer science, 1989, p. 77.
[18] l. April 22, 1941, n. 633, art. 2, n. 8.
[19] G. GHIDINI, programs for computers between patent law and d ‘ author, in Commercial Law, 1984, II, p. 251.
[20] On this point you might want to read E. Pattaro, Statement of information law, CLUEB, 1999 , p. 27-30.
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