CONTENTS: 1. Introduction. – 2. Analysis of the regulatory environment, a process still under development. – 3. The judgment C-128/11 and the affirmation of the principle of distribution. – 4. The general application of the Court’s ruling. – 5. Additional considerations on the effects of the judgment, and the “shock” to 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 information 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, known to most as “Oracle Case” (Court giust., July 3, 2012, c. 128/11, UsedSoft GmbH v. Oracle International Corp., in The Italian Forum, 2012, p . 377 et seq.).
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 you should immediately fix an important date for the “protection of software”, that of March 16, 2000, when it was approved in standards Community (Decision 2000/278 / EC) of the “Treaty of WIPO (World Intellectual Property Organisation) Copyright” (hereinafter “the Treaty on the copyright”) to which Article 4 He states: “Computer programs are protected as literary works under Article 2 of the Berne Convention. Such protection applies to any mode or form of expression of a computer program “.
But the decision to locate in the area of computer programs works protected by copyright it has been characterized by a long legal debate, which resulted in the exclusion of the first software from the list of inventions which may be patented, which took place in ‘ambit of the Euopean Patent Convention of Monaco of Bavaria, and then, later, also in implementing the Directive 1991/250 / EEC, which in Article 1 states that “Member States shall protect computer programs, by the law of ‘copyright, as literary works under the Berne Convention for the Protection of Literary and Artistic Works. “
A 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 the copyright in computer ambit, on the basis of what happened in the United States of America with the Computer Software Amendment Act, and in many Anglo-Saxon 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 legislature immediately felt the need to diversify the protection of software from that of literary works, by introducing Article 6 of the Treaty on copyright, in the first paragraph, an important concept, since per hour to foreign copyright itself: “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 by any other way transfer of ownership. ” This paragraph was therefore introduced the cd “The distribution right” of which he was also adjusted its principle of exhaustion in the next paragraph: “Nothing in this Treaty shall affect the freedom of Contracting Parties to determine any conditions in which his 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 permission of the author. “
The true extent of this rule probably it was not quite educated, at least at first, and probably thanks to the “Case Oracle” has failed 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 should be seen as a process still in progress, certainly long and complex, it will take some time before reaching a conclusion, tant ‘it is true that they are still in discussion all those differences related to imperfect omologabilità of Literary computer programs, recorded in doctrine.
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. But you should be careful not to read these considerations in favor of industrial law. The exclusion made in Monaco is not entirely without foundation. In this regard, in fact, it has been argued that this exclusion, pursuant to art. 45 of Legislative Decree no. 30/2005 (“Industrial Property Code”), constitute the proof more faithful dell’ontologica connotation of the software in terms of their own invention.
It is evident, therefore, that the legislature’s choice is European born of urgency protect evenly ambit Community discipline of computer programs, identifying thus in copyright discipline best suited to regular, in fact, the interests of those who, as the software company, is investing heavily in the production of computer products.
And this choice may be considered acceptable, but perhaps only in part. A first arouse some doubt is the statement just inherent in Directive 2009/24 / EC, which includes the term “software” 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 the Last Supper by Leonardo da Vinci, or the minutes of Manzoni, they, according to common sense, are easily distinguishable and categorized as intellectual property subject to 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.
It is believed that this takes the form of pulses that objectively assume a form of expression 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 by law n. 633 of 1941 (Law laying down rules on the protection of copyright and other rights related to the exercise).
In this 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 an “expansion – in fact – the sphere of the monopoly beyond the confines of the law 633 of 1941″ since it feels not so easy “to orient the discipline of protection solely on the form of expression Software without invested $ content “.
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. It is in light of this premise that you must read the judgment C-128/11, in which the Court ruled on the preliminary question of the interpretation of Articles 4, paragraph 2 and 5, paragraph 1 of Directive 2009/24 / EC the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs.
The reference was made in proceedings between Oracle International Corporation (hereinafter referred to as “Oracle”) and UsedSoft GmbH (hereinafter “UsedSoft”) regarding the marketing by the latter of licensing computer programs used in Oracle.
The Court ruled that Article 4, paragraph 2, 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, download a copy of IT support via the 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 that it owns the right to use the copy itself indefinitely .
With the same pronunciation it has also held that Articles 4, paragraph 2, and 5, paragraph 1, of the above Directive, must be interpreted as meaning that, in the case of resale of a license to use that implies the resale of a copy of a computer program downloaded from the website of the owner of copyright, license that was initially granted to the first purchaser from the same holder indefinitely and against payment of a price to make it possible to 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 Article 4, paragraph 2, of that directive and therefore can be considered as a lawful acquirer of a copy of a computer program, in accordance with article 5 paragraph 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 UsedSoft seem facing the entire European market software, it should be emphasized first of the legal reasoning followed by the Court of Justice in that judgment.
So should first clarify that Oracle has set his defense claiming not to proceed with the sale of copies of the software, but of put them freely available to all customers who have concluded a specific license agreement, a sequel which would come into possession of “key” in order to make a free download from their website. The Court instead
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 downloading a program without entering into a licensing agreement, the program itself could not be used legitimately by who has downloaded.
And first consequence of the affirmation of the principle of indivisibility of the license agreement and downloads, there is the abolition of the distinction, formed in practice, including the sale of software on physical media and the support of the intangible. 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 best suited to regulate 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 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.
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 immaterial (ie via download), which would not appear to give rise no wonder, as there was a similar result for other intellectual property (think, for example, the market for books or movies used).
Moreover we must consider that now, in addition to professional activities, to optimize the organization of their 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 covered in the spheres of everyday city life, such as software for the control of traffic lights or trains, and privacy of each partner, such as satellite navigation software, increasingly present equipment in cars, or as those of management of home appliances (in fact today it is starting to talk more and more of the “Internet of things”). 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 European Union, and as such is highly conceivable that soon you will feel more and more the need for the creation of a real market “second hand” (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 could be closer to a poetic license, we could call as a market of “second click”.
A further proof of this reading then there is the clear statement of the Court under which it removed any doubt about the status of “lawful acquirer” of subsequent buyers of a computer program, and that the holder of copyright of a software can or can not, through appropriate contractual arrangements, oppose the resale of the software itself.
5. In light of the foregoing, the Court of Justice has thus legitimized the business of UsedSoft, then we would be right to define as the pioneer in the market of “second click” of the software in the ‘European Union. Because 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 necessary the continuation of this work of ” normative integration “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, or who even considered that the idea of bringing the programs to literature was so farfetched to merit even consideration. It actually does not look so difficult to share these ideas.
It is therefore for these reasons that the Court’s ruling in the “case Oracle”, having, as mentioned, departed from the formal rigidity of copyright, it can certainly be considered as a real shock to the right of ‘author himself.
6. Today more than ever is to be noted that with the proliferation of new technologies, and in particular of those portable as smartphones and tablets, the definition of software, certainly can not remain anchored in principles now dated (think that the definition of software It was the result of many years of development which ended in 1984 in Canberra) and thus its protection should be reviewed.
Copyright, therefore, would not appear today represent the most appropriate means of protection for 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 nor the intellectual property, nor to those of industry, but by creating a new category. It
although the work may seem onerous to what, having to create, to be able to categorize the software, a hybrid fusion between the copyright and intellectual property law, appears nonetheless appropriate to make this effort to offer the most appropriate type of protection.
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 homage to its delicate and important role, to step forward and try to minimize the legitimate doubts of interpretation arising from the current legislation fragmentary and incomplete.
The series, however, it is intended to increment more and more: you 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, or enter into contracts of insurance on-line, without necessarily having to go into a branch, all simply by authenticating with your digital signature.
Today, then, for every activity of ordinary life, 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, regulating 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?
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