├── .gitignore ├── CONTRIBUTING.markdown ├── IFOSSLB.epub ├── IFOSSLB.pdf ├── README.markdown ├── main-docinfo.markdown ├── metadata.yaml └── src ├── 10-Intro.markdown ├── 20-History.markdown ├── 50-Belgium.markdown ├── 50-China.markdown ├── 50-Finland.markdown ├── 50-France.markdown ├── 50-Germany.markdown ├── 50-Israel.markdown ├── 50-Italy.markdown ├── 50-Korea.markdown ├── 50-Netherlands.markdown ├── 50-Poland.markdown ├── 50-Portugal.markdown ├── 50-South_Africa.markdown ├── 50-Spain.markdown ├── 50-Switzerland.markdown ├── 50-Taiwan.markdown ├── 50-United_Kingdom.markdown ├── 50-United_States_of_America.markdown └── img ├── 1007350349.jpg ├── cover.png └── textovia-logo.png /.gitignore: -------------------------------------------------------------------------------- 1 | 2 | .DS_Store 3 | -------------------------------------------------------------------------------- /CONTRIBUTING.markdown: -------------------------------------------------------------------------------- 1 | # How to contribute to IFOSSLB 2 | 3 | Thank you for your willingness to contribute to IFOSSLB. 4 | 5 | To keep the quality and coherence of this publication high, here are some easy guidelines that should be followed. 6 | 7 | 8 | ## Files 9 | 10 | This are the working parts: 11 | 12 | - `src/` contains the current sources in MarkDown 13 | - `IFOSSLB.pdf` is the PDF of the whole book 14 | - `IFOSSLB.epub` is the ePub the whole book 15 | 16 | 17 | ## Git branches 18 | 19 | - `master` branch is always stable and always contains the latest actual release 20 | - `bugfix` branch is the development version – ideally a cutting-edge, but working version 21 | - any specific fixes and additions should go into their own branches before they are approved to be merged into the `bugfix` branch – a good idea to give it a descriptive name (e.g. `intro-2021-update` or `pandoc-automation`) 22 | 23 | 24 | ## Pull requests 25 | 26 | After you fixed something in a branch, create a pull request to the `bugfix` branch. 27 | 28 | Once it was tested in the `bugfix` branch for a while, a pull request can be made from `bugfix` to `master`. 29 | 30 | The pull request to `master` has to be approved by at least 2 project members, and include no objections from project members. 31 | 32 | Any changes to the content of a chapter need to be approved by at least one original chapter author. 33 | 34 | 35 | ## Naming convention 36 | 37 | The individual source files are named according to the following convention: 38 | 39 | ``` 40 | 10-Intro.markdown 41 | 20-History.markdown 42 | 50-Belgium.markdown 43 | 50-China.markdown 44 | 50-... 45 | 46 | ``` 47 | 48 | The position of the chapters Intro, History and is predetermined and the country chapters can simply be added as `50-$country_name.markdown` and they will be generated in the right order without the need to manually keep track of the order in a separate file. This also leaves space to introduce new groups of chapters before or after, as well. 49 | -------------------------------------------------------------------------------- /IFOSSLB.epub: -------------------------------------------------------------------------------- https://raw.githubusercontent.com/IFOSSLawBook/ifosslawbook/a36d68a6982e26086de1954129aac5ea937ce16d/IFOSSLB.epub -------------------------------------------------------------------------------- /IFOSSLB.pdf: -------------------------------------------------------------------------------- https://raw.githubusercontent.com/IFOSSLawBook/ifosslawbook/a36d68a6982e26086de1954129aac5ea937ce16d/IFOSSLB.pdf -------------------------------------------------------------------------------- /README.markdown: -------------------------------------------------------------------------------- 1 | # IFOSS Law Book 2 | 3 | ## Introduction 4 | 5 | Open source has travelled a long way from its beginnings as a way to share software between engineers. The evolution has been long and occasionally winding, though in retrospect the result was inevitable. Open source is now a process approach for collaboration. It has clearly known effective approaches, governance and supportive international standards. Underlying all this, of course, is law. Law provides the framework from which parties who do not know each other may engage with a degree of certainty. It provides pillars of structure and redress. It is the formal and stilted language that transcends normal discourse, and allows impartial judgement where necessary. 6 | 7 | This book contains law as it pertains to open source with an optic that reflects the global nature of the field. It illustrates the nuance of law as it applies to open source country by country, and in doing so it allows us to follow the thin threads of structure that highlight both the similarities and the differences necessitated by different geographies and cultures. While not conclusive, this book can act as an adequate guide in this field, and delivers a resource intended to be of equal use to those new and experienced. 8 | 9 | ## What You Will Find Here 10 | 11 | This repository contains the printable and source files of the second edition of the IFOSS Law Book. 12 | 13 | Any pull request will be authorized only by the copyright holders of the individual contributions. 14 | 15 | > **NOTE**: **_Good, you are working on the `bugfix` branch_** 16 | > 17 | > Please always make pull requests to the `bugfix` branch first. 18 | 19 | 20 | For information on how to contribute, read `CONTRIBUTING.markdown`. 21 | 22 | 23 | ## Generating the PDF with Pandoc 24 | 25 | Generating a full-book PDF now works by running (requires Pandoc 2.0 or later): 26 | 27 | ``` 28 | pandoc --top-level-division=chapter --number-sections --latex-engine=xelatex -s -f markdown_strict+footnotes+auto_identifiers+implicit_header_references+header_attributes+yaml_metadata_block metadata.yaml src/*markdown -o IFOSSLB.pdf 29 | ``` 30 | 31 | Useful explanations: 32 | 33 | - `--top-level-division=chapter` treats the top level headings as separate chapters and makes them start on a new page. 34 | - `--number-sections` adds number to the sections so it is possible to determine the level of each heading 35 | 36 | 37 | ## Generating the ePub with Pandoc 38 | 39 | Generating a full-book ePub now works by running (requires Pandoc 2.0 or later): 40 | 41 | ``` 42 | pandoc --top-level-division=chapter --number-sections -s -f markdown_strict+footnotes+auto_identifiers+implicit_header_references+header_attributes+yaml_metadata_block metadata.yaml --epub-cover-image='cover.png' src/*markdown -o IFOSSLB.epub 43 | ``` 44 | 45 | -------------------------------------------------------------------------------- /main-docinfo.markdown: -------------------------------------------------------------------------------- 1 | 2nd 2 | title: The International Free and Open Source Software Law Book 3 | lang: en 4 | doctype: book 5 | 9783955391027 6 | 9783955391034 7 | 9783955391041 8 | 9783955391058 9 | 1 10 | 11 | 12 | > As legal systems differ throughout the world there are significant 13 | > differences in how Free and Open Source Software licenses are treated 14 | > in different countries, and it can be difficult to obtain reliable 15 | > information on national interpretations. The International Free and 16 | > Open Source Software Law Book engages with this by providing a clear 17 | > yet thorough analysis of Free and Open Source legal matters written 18 | > and maintained by local experts. 19 | > 20 | > The publication is targeted towards lawyers, jurists and academics, 21 | > and positioned as an international bench mark reference work. It 22 | > provides an introduction to software protection, a general analysis of 23 | > FOSS under local legislation and an overview of local FOSS cases (if 24 | > any) for each country covered. 25 | > 26 | > The 2nd Edition of the book features both new and updated chapters to 27 | > ensure professionals remain abreast of the latest developments and 28 | > market growth of Open Source. 29 | 30 | 2014 31 | Open Source Press GmbH 32 | 2014-06-05 33 | Open Source Press 34 | http://www.opensourcepress.de 35 | http://www.opensourcepress.de 36 | Olga 37 | Saborov 38 | The information in this book ist distributed on As is basis, without 39 | warranty. While every precaution has been taken in the preparation of 40 | this work, neither the authors nor the editors nor Open Source Press 41 | GmbH shall have any liability to any person or entity with respect to 42 | any loss or damage caused or alleged to be caused directly or indirectly 43 | by the information contained in it. 44 | 45 | Open Source Press and the Open Source Press logo are registered trade 46 | marks of Open Source Press GmbH. Other product or company names 47 | mentioned herein may be the trademarks of their respective owners. 48 | Rather than use a trademark symbol with every occurence of a trademarked 49 | name, we are using the names only in an editorial fashion and to the 50 | benefit of the trademark owner, with no intention of infringement of the 51 | trademark. 52 | 53 | Creative Commons - Attribution-NoDerivs 3.0 Unported 54 | 55 | http://creativecommons.org/licenses/by-nd/3.0/ 56 | -------------------------------------------------------------------------------- /metadata.yaml: -------------------------------------------------------------------------------- 1 | --- 2 | title: International Free & Open Source Law Book (2nd edition) 3 | author: 4 | - Van der Brande 5 | - Coughlan 6 | - Jaeger 7 | description: | 8 | As legal systems differ throughout the world there are significant differences in how Free and Open Source Software licenses are treated in different countries, and it can be difficult to obtain reliable information on national interpretations. The International Free and Open Source Software Law Book engages with this by providing a clear yet thorough analysis of Free and Open Source legal matters written and maintained by local experts. 9 | 10 | The publication is targeted towards lawyers, jurists and academics, and positioned as an international bench mark reference work. It provides an introduction to software protection, a general analysis of FOSS under local legislation and an overview of local FOSS cases (if any) for each country covered. 11 | 12 | The 2nd Edition of the book features both new and updated chapters to ensure professionals remain abreast of the latest developments and market growth of Open Source. 13 | toc: true 14 | toc-depth: 1 15 | colorlinks: true 16 | documentclass: book 17 | classoption: oneside 18 | --- 19 | 20 | 21 | 22 | -------------------------------------------------------------------------------- /src/10-Intro.markdown: -------------------------------------------------------------------------------- 1 | # About the publication 2 | 3 | > Information wants to be free. Information also wants to be expensive. 4 | > Information wants to be free because it has become so cheap to 5 | > distribute, copy, and recombine — too cheap to meter. It wants to be 6 | > expensive because it can be immeasurably valuable to the recipient. 7 | > That tension will not go away. It leads to endless wrenching debate 8 | > about price, copyright, “intellectual property”, the moral rightness 9 | > of casual distribution, because each round of new devices makes the 10 | > tension worse, not better. 11 | > 12 | > — Stewart Brand The Media Lab - Inventing the Future at M.I.T. 13 | 14 | The tension underlying the value of information translates into two 15 | predominant software paradigms: Free and Open Source Software (FOSS) and 16 | proprietary software. The criteria for differentiation are based on 17 | control over the software/information. With proprietary software, 18 | control tends to lie more with the vendor, while with Free and Open 19 | Source Software, it tends to be more weighted towards the end user. But 20 | even though the paradigms differ, they use the same copyright laws to 21 | reach and enforce their goals. From a legal perspective, Free and Open 22 | Source Software can be considered as software to which users generally 23 | receive more rights via their license agreement than they would have 24 | with a proprietary software license, yet the underlying license 25 | mechanisms are the same. 26 | 27 | However, as legal systems differ throughout the world there are 28 | significant differences in how Free and Open Source Software licenses 29 | are treated in different countries, and it can be difficult to obtain 30 | reliable information on national interpretations. The IFOSS Law Book 31 | engages with this issue by providing a clear yet thorough analysis of 32 | Free and Open Source legal matters by national legal experts. The first 33 | edition covered thirteen countries. This second edition adds four more 34 | countries, bringing the number to seventeen and new editions will expand 35 | over time to explore more. The purpose of the IFOSS Law Book is to 36 | provide a clear, compelling and simple way for legal professionals, 37 | students and academics, and broader policy makers, to contextualize the 38 | ramifications and imperatives of the field in their own nation, and in 39 | the nations of others. This lofty goal is supported by necessity; the 40 | very nature of Free and Open Source Software assumes collaboration to 41 | drive value, and such collaboration is by the nature of the Internet not 42 | confined to national borders, yet it is simultaneously defined in legal 43 | terms by their differing systems, laws and interpretations of best 44 | practice in the management of creative goods. 45 | 46 | The IFOSS Law Book does not endeavour to be the sole required reference 47 | for legal aspects of Free and Open Source Software. Rather, it is 48 | intended to become the place where legal experts confronted with a legal 49 | question under a foreign jurisdiction can turn for an understanding on 50 | how Free and Open Source Licenses are treated under that law. From this 51 | starting point, experts can seek specific information or seek the advice 52 | of a local legal counsel. In short, the IFOSS Law Book is positioned as 53 | a bench mark reference that helps people quickly contextualize the key 54 | issues in the field. 55 | 56 | Finally, it is important to point out that the IFOSS Law Book is not 57 | written for those who endorse FOSS for ideological or practical reasons. 58 | The publication is targeted towards all those that encounter FOSS in 59 | their profession. 60 | 61 | ## Free Software or Open Source Software 62 | 63 | The Free Software and the Open Source Software movements largely pursue 64 | similar goals and endorse similar software licences. But historically, 65 | both movements carry different emphases. Where the “Free Software” 66 | movement focuses on the rights (the four freedoms) which Free Software 67 | provides to its users, the “Open Source Software” movement points to its 68 | Open Source Definition and the advantages of peer-to-peer software 69 | development. The IFOSS Law Book does not endorse any emphasis. It uses 70 | the term Free and Open Source Software (FOSS) to cover both Free 71 | Software and Open Source Software. 72 | 73 | ## FOSS licences 74 | 75 | The goals of FOSS are realised through licences governed by copyright 76 | law. These licences tend to take an unusual form compared to traditional 77 | proprietary documents. Instead of providing a narrow grant of use with a 78 | long list of exceptions and restrictions, FOSS licences provide a broad 79 | grant of use with few restrictions. These licences are often divided 80 | into three categories: non-Copyleft, weak-Copyleft and strong-Copyleft. 81 | It is the analysis of these licenses under local copyright law by local 82 | legal experts that lies at the heart of the IFOSS Law Book. 83 | 84 | ## Working method 85 | 86 | This law book is a product of its time. Its management is distributed 87 | across three countries and two continents, while its contributors are 88 | linked through technology as much — if not more — than their formal 89 | legal positions and firms. The two threads underlying the organization 90 | of the publication are that the book itself will provide a neutral and 91 | lasting reference, while the local chapters will be developed in a 92 | flexible enough manner to accurately reflect the state of the art 93 | regarding interpretation for the nation in question. As such the book 94 | actually has two forms; an “evolving” form based at 95 | that sees each chapter continually 96 | refined and provides a mechanism for any reader to contribute notes and 97 | clarifications as necessary, and a “complete” form that is physically 98 | published through Open Source Press, Germany. 99 | 100 | Like any work of reference, this book is intended to be accurate and 101 | trustworthy, and it employs several methods to deliver the highest level 102 | of fidelity in this regard. The first and foremost is the careful 103 | selection of chapter authors. All of the initial authors are 104 | experienced, driven professionals sourced from the European Legal 105 | Network, the largest network of its kind, and the primary global 106 | resource for Free and Open Source Software legal knowledge as of 2014. 107 | The second method is to openly and continuously invite the broader 108 | network to review, comment and improve the chapter texts, positioning 109 | the publication in clear terms as an open reference intended to benefit 110 | all. The third and by no means least important method is to ensure that 111 | third party experts — be they legal professionals, technical experts or 112 | from another field altogether — can easily register and provide feedback 113 | on chapters and the book itself through the main website. 114 | 115 | The governance of the IFOSS Law Book is currently limited to a handful 116 | of parties. As the publication progresses, it will develop a formal 117 | governance structure based on maintaining objective analysis, improving 118 | its potential for sustainability and ensuring fair representation for 119 | diverse legal and social systems. This governance will be drawn from 120 | existing contributors, the network from which they originate and from 121 | the example set by other publications in this field. As with all other 122 | aspects of this publication, contributions towards its development is 123 | welcomed from all interested parties. 124 | 125 | The IFOSS Law Book currently provides three forms of information for 126 | each country covered: 127 | 128 | - An introduction to software protection (in general) in the nation 129 | 130 | - A general analysis of FOSS under local legislation 131 | 132 | - A overview of local FOSS cases (if any) 133 | 134 | The second edition is edited by Ywein Van den Brande, Shane Coughlan and 135 | Till Jaeger. 136 | 137 | ## License 138 | 139 | The IFOSS Law Book as a whole is published under a CC-BY-ND license. The 140 | text can be freely copied and shared by any party under these 141 | conditions. Physical copies may be purchased, but it is also available 142 | at no cost in electronic form at our website. 143 | 144 | ## Conclusion 145 | 146 | FOSS is no longer a new, challenging and unproven method regulating the 147 | creation, use and redistribution of creative goods for digital purposes. 148 | In the past twenty five years it has matured into an accepted, proven 149 | and compelling proposition for commercial and non-commercial entities 150 | alike, delivering value in terms of both productivity and economic 151 | activity. As it has matured, so too has the legal understanding 152 | regarding its use on a nation by nation basis. The first edition of the 153 | IFOSS Law Book contributed hereto with a comprehensive overview of the 154 | understanding of FOSS under the legislation of thirteen countries. 155 | 156 | It is with this in view that the editors present this second edition of 157 | the International Free and Open Source Software Law Book (IFOSS Law 158 | Book) that covers four more countries. We hope and expect that it will 159 | provide a useful and trusted source for users and advisors seeking 160 | information on Free and Open Source Software issues under foreign 161 | legislations. 162 | 163 | Enjoy the book. 164 | 165 | Ywein Van den Brande — Shane Coughlan — Till Jaeger 166 | 167 | July 2014 168 | 169 | -------------------------------------------------------------------------------- /src/20-History.markdown: -------------------------------------------------------------------------------- 1 | # A history of FOSS law and licensing 2 | 3 | *Arnoud Engelfreit[^history_bio]* 4 | 5 | Surprisingly, programmable computers are older than copyright law: 6 | Charles Babbage’s analytical engine of 1837 predates the Berne 7 | Convention for the Protection of Literary and Artistic Works (1886). 8 | However, unlike the Convention, Babbage’s mechanical contraption 9 | designed to perform mathematical calculations never became a real-world 10 | success. Several special-purpose machines, such as the Hollerith 11 | tabulating machine, did sell on the market in the late 19th and early 12 | 20th century. The first computers in the modern sense only became 13 | available in the 1950s, thanks to ground-breaking research by John von 14 | Neumann and Alan Turing in particular. 15 | 16 | Companies such as IBM that provided these computers as part of what we 17 | today would call “solutions”: businesses were provided with 18 | specially-programmed computers to support certain business activities. 19 | Customers would pay for continued support and new programs as part of 20 | the deal, but no one would consider buying or selling computer programs 21 | by themselves.[^history_1] Users would get together to share their in-house 22 | software developments with others, eventually leading to the building of 23 | pools of software. This was actually encouraged by most vendors, as it 24 | stimulated the sale of hardware that could use this software. One might 25 | thus say that the idea of free and open source is as old as the 26 | computing business itself.[^history_2] 27 | 28 | ## Age of the shrink-wrap 29 | 30 | New developments in computing power over the next decade caused a 31 | fundamental shift away from this model. A landmark event occurred in 32 | 1969 when IBM unbundled its hardware and software activities, 33 | effectively giving birth to the software industry as such.[^history_3] A further 34 | stimulus for this market came from the personal computer, a low-cost 35 | alternative to the “big iron” mainframe computers that were mainly in 36 | use at the time. In the early 1970s, several do-it-yourself kits became 37 | available that allowed hobbyists to build their own personal computers, 38 | and in 1977 the Commodore PET and the Apple II appeared on the market as 39 | the first ready-to-use computers.[^history_4] With hardware and software 40 | products separated, software as such was ready to develop as a market. 41 | But many software vendors were concerned about the viability of this 42 | market, as it was unclear which legal protection they would receive. 43 | 44 | Debate among lawmakers and lobbyists led to various proposals, ranging 45 | from copyright and patent law to a *sui generis* right specifically 46 | designed to protect software. After much debate, a consensus emerged 47 | that copyright would be the most appropriate legal means.[^history_5] The USA 48 | was the first to adopt copyright protection for software.[^history_6] The 49 | European Economic Community followed in 1991 with its Software 50 | Directive,[^history_7] which was largely based on the US law but with more 51 | liberal provisions on reverse engineering. With copyright protection 52 | firmly in place, software vendors were able to sell their software “as a 53 | book” (to quote from the Borland software licenses) by charging 54 | royalties for each copy sold.[^history_8] This created a large market for 55 | software, sometimes called the “Age of the Shrink-wrap” because of the 56 | way that software was made available: in large, shrink-wrapped boxes. 57 | 58 | Software distributors did something peculiar in this market: while 59 | software was offered “as a book”, they did not actually sell the 60 | software. They included long legal documents that solemnly declared that 61 | the software was merely licensed and that the user had no rights other 62 | than as provided in this license. The legal validity of these licenses 63 | has been hotly disputed but today seems to be grudgingly accepted in the 64 | general case.[^history_9] Two areas of particular attention in these licenses 65 | are the restriction of statutory rights, such as the right to reverse 66 | engineer the software, and the disclaimer of all warranties and 67 | liabilities. 68 | 69 | The right to reverse engineer is a peculiar one. As a general rule, 70 | buyers of a product are expected and permitted to examine what they buy 71 | and to discover how it works. Copyright (or patent) law may restrict the 72 | building and selling of cloned products, but the investigation itself is 73 | not restricted. For software, these licenses would put this expectation 74 | on its head. No one was permitted to discover how the licensed software 75 | works — not even if a compatibility issue or a serious bug arose. This 76 | gave the licensor a very comfortable position, as he could now charge 77 | maintenance fees for any and all work to be done on the software. 78 | Legislators did try to introduce at least some right to reverse engineer 79 | software for compatibility purposes, but these clauses are generally 80 | regarded as weak and risky to invoke.[^history_10] 81 | 82 | ## Free software and the GPL 83 | 84 | As soon as software by itself started to become a viable market, access 85 | to software in its human-readable source code form was becoming more and 86 | more difficult. Software companies regarded their source code a 87 | treasured business secret (in today’s terms: their intellectual 88 | property) and severely restricted its access and distribution to third 89 | parties. For famous MIT hacker Richard M. Stallman, this “hoarding” of 90 | software was simply unacceptable. Software should be freely available to 91 | all, and its programmers should not be able to set legal or other 92 | restrictions on other people’s use of the code.[^history_11] In 1983, Stallman 93 | quit MIT and founded what would become the Free Software Foundation 94 | (FSF), an organisation dedicated to creating and stimulating software 95 | that would be freely available to all. 96 | 97 | To help achieve this goal Stallman drafted the *GNU General Public 98 | License* or GPL, a software license that allows anyone to freely use, 99 | distribute and adapt the licensed software at no charge. The only 100 | restriction he added was that any adapted or extended version of the 101 | software could only be distributed under the GPL as well. This ensured 102 | the continued availability of the source code to anyone who came in 103 | contact with the software. With this license, he turned copyright on its 104 | head — an early name for the model is *copyleft*. 105 | 106 | Fifteen years later, Stallman’s work was shown to be a resounding 107 | success. Almost single-handedly he had written most of the software 108 | needed to program and use a general-purpose computer. Only one 109 | significant part was missing: the *kernel*, the key part of a computer 110 | operating system that controls all software and interfaces with the 111 | underlying hardware. Operating systems are expensive and difficult to 112 | develop, but in 1991 a Finnish second-year computer science student 113 | announced he was going to create one as “just a hobby, won’t be big and 114 | professional”. His creation *Linux* (mixing his first name Linus and 115 | Unix according to hacker tradition) would become one of the most 116 | valuable pieces of software ever written. Torvalds chose to use the GPL, 117 | calling it “one of the very best design decisions” he ever made.[^history_12] 118 | 119 | ## Legal entanglements around BSD 120 | 121 | If not for a legal battle around free software elsewhere, Linux might 122 | not have been. The Berkeley Software Distribution (BSD) was a collection 123 | of extensions, patches and add-ons to the Bell Labs Unix operating 124 | system created at Berkeley University. Based on the principles of free 125 | and open source software, the BSD had already been available since about 126 | 1978. Over the years, BSD morphed into a complete operating system, 127 | culminating in the so-called Networking Release 2 in June 1991. All code 128 | was available under the BSD license, allowing anyone to use it provided 129 | credit was given to the original authors. 130 | 131 | AT&T, owners of the Unix copyrights at the time, felt that this release 132 | infringed on its copyrights and filed a lawsuit against the 133 | university.[^history_13] In a counterclaim, Berkeley alleged that AT&T had used 134 | BSD code without adhering to its license, as credits and copyright 135 | notices had been removed.[^history_14] The suit dragged on until a settlement 136 | was obtained in 1994. By that time however the development of BSD had 137 | slowed down significantly, allowing Linux to gain developer attention. 138 | Torvalds has observed he would not have created Linux if the BSD 139 | operating system had been available to him at the time.[^history_15] 140 | 141 | ## The rise of open source 142 | 143 | With the Linux kernel available, the free software movement finally was 144 | in a position to make significant growth and maybe overtake the 145 | “proprietary” world. However, it only had limited success. Over the 146 | years, the FSF had developed a rather confrontational attitude towards 147 | companies that did not subscribe to its ideas, which made companies 148 | hesitant to adopt free software.[^history_16] A related complication was that 149 | the GPL was often misunderstood by lawyers, creating a false belief that 150 | using any piece of GPL software in one’s product would require the 151 | “freeing” of the entire software stack. 152 | 153 | In 1998 Netscape Communications announced that it would release the 154 | source code of its Web browser. This spurred a group of prominent free 155 | software developers to promote free software principles under the 156 | newly-coined term “open source”: collaboration between programmers 157 | world-wide who jointly improve software in a way that no individual 158 | company could achieve.[^history_17] The Open Source Initiative (OSI) was 159 | subsequently founded as a public benefit corporation, which amongst 160 | other things offers a certification program for open source software 161 | licenses.[^history_18] Their trademark application on the term “open source” was 162 | refused. Certified licenses now wear the label “OSI Certified Open 163 | Source”. 164 | 165 | The choice for the term “open source” has not been well received by the 166 | free software community. The main point of criticism is that “free 167 | software” focuses on freedoms for all users, while “open source” waters 168 | down the focus to just community-driven development.[^history_19] In recent 169 | years the term *free and open source software* or FOSS has arisen as a 170 | neutral alternative, a practice which this law book also adheres to. A 171 | lesser-used variant is *free/libre/open source software* (FLOSS), which 172 | uses “libre” to clarify the meaning of free as in “freedom” rather than 173 | as in “at no charge”. 174 | 175 | ## Legal validity 176 | 177 | There are hundreds of FOSS licenses, although they can be grouped 178 | roughly into three categories. The first category is often referred to 179 | as the *academic licenses*, which basically require that credit be given 180 | and the authors are shielded from warranty claims. The second category 181 | provides *copyleft* — the requirement that source code be made available 182 | to users, including derivative works. The third category is somewhat of 183 | a compromise: *weak copyleft* requires that source code of the software 184 | itself (and modifications to it) are shared but larger works may be kept 185 | proprietary. Most FOSS today is licensed under the GPL, the canonical 186 | copyleft license.[^history_20] The BSD license is the most popular academic 187 | license. Netscape used the weak-copyleft Mozilla Public License when 188 | releasing its browser in 1998. 189 | 190 | Much has been written about the legal validity of FOSS licenses in 191 | various jurisdictions.[^history_21] Legal debate focuses mostly on the copyleft 192 | provisions: what is the scope of a “derivative work” and how far can a 193 | license extend the obligation of relicensing under a copyleft license? 194 | Other legal areas of contention are the limitations of liability and the 195 | interpretation of rights and obligations under international law. 196 | However, the number of lawsuits worldwide challenging these licenses can 197 | be counted on the fingers of two hands. The aforementioned lawsuit 198 | around BSD may well be regarded as the first, at least in spirit. 199 | 200 | In 2002, it looked like the GPL would have its day in court when the 201 | GPL-licensed MySQL database became subject of a lawsuit between owner 202 | MySQL AB and the US software company Progress.[^history_22] Progress had 203 | allegedly created a derivative work of MySQL by adding support for its 204 | own database format. However, after MySQL obtained a preliminary 205 | injunction, the parties settled before the question could be addressed 206 | by the court. 207 | 208 | The Software Freedom Law Center has filed several lawsuits against 209 | misappropriation of GPL code. Several cases have been filed focusing on 210 | Busybox, starting with *BusyBox vs Monsoon* in 2007.[^history_23] However, all 211 | cases so far have been settled out of court. Few others have brought 212 | cases. Two notable examples are *SCO vs. IBM* and *Wallace vs. FSF*. The 213 | less said about those legal disasters the better.[^history_24] 214 | 215 | An important milestone was the 2008 JMRI lawsuit, focusing on model 216 | rail-road train software licensed under the little-used “Artistic 217 | License”. In a much-welcomed ruling, the US Federal appeal court ruled 218 | that the principle of open source licensing was a valuable goal that 219 | copyright law ought to support.[^history_25] In addition, the court held that 220 | the source code sharing obligations were limitations of the copyright 221 | license and not mere covenants to the license. This distinction is 222 | important, as violating a license limitation allows the full force of 223 | copyright law to be used against the licensee. A mere covenant has to be 224 | addressed as a contract breach.[^history_26] 225 | 226 | In Germany, Linux kernel hacker Harald Welte did manage to achieve 227 | several legal successes against companies using his GPL-licensed 228 | netfilter software. Notably, Welte obtained injunctions against D-Link, 229 | Fortinet and SMC (Skype).[^history_27] Subsequently, German courts had little 230 | trouble accepting the GPL as a legally binding license agreement and 231 | enjoining those who did not adhere to its terms.[^history_28] Welte founded the 232 | *GPL-violations.org* project in January 2004 to raise public awareness 233 | of the infringing use of free software.[^history_29] The project has reported 234 | numerous successful settlements and a 100% success rate in enforcing its 235 | licenses. 236 | 237 | ## Towards the future 238 | 239 | FOSS shows no sign of slowing down. Linux is widely in use in embedded 240 | environments (mobile phones, televisions, cars, robots) and the open 241 | source Firefox web browser is the most popular alternative to 242 | Microsoft’s Internet Explorer. Most of the infrastructure of the 243 | Internet runs on open source software. 244 | 245 | Licensing-wise, FOSS is here to stay. There is consensus that the 246 | principles of FOSS are legally sound. FOSS licensing is also being 247 | recognized as valuable by policymakers. Lawsuits in the coming years may 248 | address some of the open issues, such as the scope of derivative works 249 | and liability for FOSS developers. More is to be expected from voluntary 250 | compliance and a growing maturity in how the legal community approaches 251 | FOSS licensing principles. We have come a long way already. 252 | 253 | [^history_bio]: *Arnoud Engelfriet (b. 1974) is an IT lawyer and European patent attorney. He works as 254 | partner at ICTRecht legal services in the Netherlands. In 2005, while 255 | working for Royal Philips, he was involved in the software patent debate 256 | surrounding the Directive and has the mental scars to prove it. With his computer science background Arnoud focuses on complex 257 | legal/technical ICT issues and software licenses (in particular 258 | open source). His blog Ius mentis is one of the most popular sites on 259 | the subject of IT and law in the Netherlands. Arnoud is a part-time 260 | teacher at the VU University of Amsterdam. 261 | * 262 | 263 | [^history_1]: Martin Campbell-Kelly, “Development and Structure of the 264 | International Software Industry, 1950-1990”, Business and Economic 265 | History 24/2 (1995): 73-110. Also see Richard M. Stallman, “The GNU 266 | Operating System and the Free Software Movement”, in: Open Sources: 267 | Voices from the Open Source Revolution, O’Reilly 1999. 268 | 269 | [^history_2]: Steven Levy, Hackers: Heroes of the Computer Revolution, Doubleday 270 | 1984. Also see Peter Salus, The Daemon, The Gnu, And The Penguin, 271 | Reed Media Services 2008. 272 | 273 | [^history_3]: Burton Grad, “A Personal Recollection: IBM’s Unbundling of 274 | Software and Services”, IEEE Annals of the History of Computing, 275 | vol. 24, no. 1, pp. 64-71, Jan.-Mar. 2002 and Thomas W. Hamilton, 276 | “IBM’s unbundling decision: Consequences for users and the 277 | industry”, Programming Sciences Corporation, 1969. 278 | 279 | [^history_4]: Paul E. Ceruzzi, A History of Modern Computing, MIT Press 1998. 280 | 281 | [^history_5]: “Legal Protection for Computer Programs: a Survey and Analysis of 282 | National legislation and Case Law” by Michael S. Keplinger (document 283 | UNESCO/WIPO/GE/CCS/2). Also see the Model provisions on the 284 | protection of computer software, prepared by the International 285 | Bureau of the World Intellectual Property Organization, 1978. 286 | 287 | [^history_6]: Computer Software Copyright Act of 1980, following the Final 288 | Report of the National Commission on New Technological Uses of 289 | Copyrighted Works (CONTU) of 31 July 1978. Also see Mark A. Lemley 290 | et al., Software And Internet Law, Aspen Law & Business 2000, pp. 291 | 34-35. 292 | 293 | [^history_7]: Council Directive 91/250/EEC of 14 May 1991 on the legal 294 | protection of computer programs. 295 | 296 | [^history_8]: Thom Holwerda, “Borland in the 1980s: ‘Treat Software Just Like a 297 | Book’”, OSNews 15 oktober 2009, 298 | . 299 | 300 | [^history_9]: See e.g. H. Ward Classen, A practical guide to software licensing 301 | for licensees and licensors, American Bar Association, Section of 302 | Business Law 2007, p. 149-152, Lawrence D. Graham, Legal battles 303 | that shaped the computer industry, Greenwood Publishing Group 1999, 304 | p. 119-125, Clive Gringras, “The Validity of Shrink-Wrap Licences”, 305 | International Journal of Law and Information. Technology 4(2), p. 306 | 77-111, R.H. Stern, “Shrink-wrap license restrictions-preempted?”, 307 | IEEE Micro 17(1), Jan/Feb 1997, p. 75-78 and David L. Hayes, “The 308 | enforceability of shrink-wrap license agreements on-line and 309 | off-line”, Fenwick & West, March 1997. The most famous case was 310 | ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), in which 311 | the US appeals court held that a shrink-wrap license was valid and 312 | enforceable as a contract, provided they do not otherwise violate 313 | generally accepted principles of contract law. 314 | 315 | [^history_10]: In Europe, Directive 91/250/EEC provides a right to decompile if 316 | that is “indispensable to obtain the information necessary to 317 | achieve interoperability” but sets limitations so severe it is hard 318 | to come up with a real-world case that evidently would prevail in 319 | court. Also see Blaney Harper and Vaishali Udupa, “Drafting 320 | Electronic Software Licenses to Prevent Reverse Engineering”, Jones 321 | Day February 2004. 322 | 323 | [^history_11]: Richard M. Stallman, “The GNU Operating System and the Free 324 | Software Movement”, in: Open Sources: Voices from the Open Source 325 | Revolution, O''Reilly 1999. Also see Sam Williams, Free as in 326 | Freedom: Richard Stallman’s Crusade for Free Software, O’Reilly 327 | 2002. 328 | 329 | [^history_12]: Robert Young, “Interview with Linus, the Author of Linux”, Linux 330 | Journal, 1 March 1994. 331 | 332 | [^history_13]: Greg Lehey, The complete FreeBSD: documentation from the source, 333 | O’Reilly 2003, pp. 8-9. 334 | 335 | [^history_14]: Marshall Kirk McKusick, “Twenty Years of Berkeley Unix”, in: Open 336 | Sources: Voices from the Open Source Revolution, O’Reilly 1999. 337 | 338 | [^history_15]: Mike Linksvayer, “The Choice of a GNU Generation — An Interview 339 | With Linus Torvalds”, Meta magazine 1993. 340 | . 341 | 342 | [^history_16]: Bruce Perens, “The Open Source Definition”, in: Open Sources: 343 | Voices from the Open Source Revolution, O’Reilly 1999. 344 | 345 | [^history_17]: Eric S. Raymond, “Goodbye, ‘free software’; hello, ‘open 346 | source’”, 16 June 2007 . 347 | Also see Eric S. Raymond, The Cathedral and the Bazaar: Musings on 348 | Linux and Open Source by an Accidental Revolutionary, O’Reilly 2001. 349 | 350 | [^history_18]: History of the OSI, . 351 | 352 | [^history_19]: Richard M. Stallman, Why “Open Source” misses the point of Free 353 | Software, GNU.org 24 September 2007, 354 | . 355 | 356 | [^history_20]: Top 20 Most Commonly Used Licenses in Open Source Projects, Black 357 | Duck Open Source Resource Center, April 2011. 358 | 359 | [^history_21]: Lawrence Rosen, Open Source Licensing, Prentice Hall PTR, 2005, 360 | Andrew M. St. Laurent, Understanding open source and free software 361 | licensing, O’Reilly 2004 and of course the very book you are reading 362 | now. 363 | 364 | [^history_22]: Progress Software Corp. v. MySQL AB, Civil Action No. 01-11031 365 | PBS, filed on June 15, 2001. 366 | 367 | [^history_23]: “On Behalf of BusyBox Developers, SFLC Files First Ever U.S. GPL 368 | Violation Lawsuit”, Software Freedom Law Center 20 September 2007. 369 | Other cases brought involved Xterasys, High-Gain Antennas and 370 | Verizon Communications. Compare Eben Moglen, “Enforcing the GNU 371 | GPL”, GNU.org 10 September 2001. 372 | 373 | [^history_24]: SCO vs. IBM was filed in 2003 as a $1 billion lawsuit alleging 374 | that IBM had somehow harmed SCO by contributing to Linux. Particular 375 | allegations involved copyright claims on number codes for Linux 376 | interfaces and the unconstitutionality of the GPL. Wallace vs. FSF 377 | (467 F.3d 1104, 7th Cir. 2006) alleged the GPL was a form of illegal 378 | price fixing. His pro se lawsuit was thrown out after the plaintiff 379 | failed to state an actionable claim despite three chances to do so. 380 | 381 | [^history_25]: Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008). 382 | 383 | [^history_26]: This touches upon the legal question whether a FOSS license is to 384 | be regarded as a contract, as a bare license, as a declaration of 385 | promissory estoppel or another legal construct. See e.g. Pamela 386 | Jones, “The GPL is a license, not a contract”, LWN.net 3 December 387 | 2003, , Eben Moglen, “Enforcing the 388 | GNU GPL”, GNU.org 10 September 2001, Lawrence Rosen, Open Source 389 | Licensing, Prentice Hall PTR, 2005 , page 53-54 and Axel Metzger and 390 | Till Jaeger, “Open Source Software and German Copyright Law”, IIC 391 | Vol. 32, 2001, p. 52. 392 | 393 | [^history_27]: J. Höppner, “The GPL prevails: An analysis of the first-ever 394 | Court decision on the validity and effectivity of the GPL”, (2004) 395 | 1:4 SCRIPT-ed 628. 396 | 397 | [^history_28]: Most recently, the Regional Court of Hamburg found FANTEC GmbH 398 | guilty of violating the GPL in their media player. Notably, Fantec’s 399 | reliance on its suppliers was deemed insufficient. LG Hamburg 400 | 14.06.2013, AZ 308 O 10/13, 401 | 402 | 403 | [^history_29]: About the gpl-violations.org project, 404 | 405 | 406 | -------------------------------------------------------------------------------- /src/50-China.markdown: -------------------------------------------------------------------------------- 1 | # China 2 | 3 | *Yang Xia[^china_bio]* 4 | 5 | ## Introduction to software protection under Chinese law 6 | 7 | ### Body of law 8 | 9 | The regulations contained in the “The People’s Republic of China 10 | Copyright Law” are formulated to protect the rights of copyright owners, 11 | to safeguard interests in the development, dissemination and use of 12 | computer software, to encourage the development and application of 13 | computer software, and to promote the software industry and the 14 | development of information technology in the context of the national 15 | economy. 16 | 17 | The key legal regulation in the context of software is the general 18 | Copyright Act. While there is a Software Act, it is a special statute in 19 | relation to the general Copyright Act, and as such does not contain any 20 | specific provisions above and beyond its terms. 21 | 22 | ### Software Act: Object of protection 23 | 24 | Computer programs and preparatory material related to their development 25 | are protected by copyright and are equivalent to literary works within 26 | the meaning of the Berne Convention for the Protection of Literary and 27 | Artistic Works. According to the Copyright Law, only original computer 28 | programs enjoy copyright protection. This means that a computer program 29 | has to be an original intellectual creation of its author. No other 30 | criteria may be used to determine whether the program is subject to 31 | copyright protection. The ideas and principles behind computer programs 32 | or technical interfaces are explicitly denied copyright protection. 33 | 34 | The term computer software (hereinafter referred to as software) refers 35 | to computer programs and related documentation. 36 | 37 | The relevant terms are defined as follows: 38 | 39 | (a) A computer program is the code sequence used by computers or other 40 | devices capable of processing information, or a sequence of symbolic 41 | instructions or statements which can be automatically converted into a 42 | sequence of coded instructions. The source code and object code is of 43 | the same program. 44 | 45 | (b) A document contains the text data and charts used to describe the 46 | computer program’s contents, composition, design, functional 47 | specifications, development and test results, such as details of the 48 | program design, flow charts, user manuals, and so on. 49 | 50 | Software protection under these regulations must be independently 51 | developed acquired by the developer, and relates to a specific tangible 52 | object. 53 | 54 | Legislation on copyright protection for software does not extend to the 55 | ideas used in software development, processing, and methods of operation 56 | or mathematical concepts and suchlike. 57 | 58 | ### Authors/Beneficiaries 59 | 60 | The relevant terms are defined as follows: 61 | 62 | (a) A software developer can be a legal entity or organization 63 | responsible for the actual organizational development, direct 64 | development and software development; or can be an individual person 65 | responsible for the independent software completed by their own effort. 66 | 67 | (b) A software copyright owner is an individual person, a legal entity 68 | or an organization that enjoys the copyright in accordance with this 69 | regulation. 70 | 71 | Chinese citizens, legal entities or organizations enjoy copyright in 72 | accordance with this regulation regardless of whether their software is 73 | published or not. Foreigners and stateless persons enjoy copyright in 74 | accordance with these regulations if their software is first published 75 | in China. Foreigners and stateless persons also enjoy copyright 76 | protection under these regulations if the developer is a resident of a 77 | state that has signed an agreement with China or an international treaty 78 | to which China is a signatory. 79 | 80 | Software copyright by default belongs to the software developer unless 81 | otherwise stated. If there is no proof to the contrary, the individual 82 | person, legal entity or organization holding the copyright is therefore 83 | deemed the developer whose name is on the software. 84 | 85 | If the software is developed by two or more individual persons, legal 86 | entities or organizations, the co-ownership of the copyright is 87 | stipulated by a written contract. 88 | 89 | If there is no written contract to describe ownership and rights, or the 90 | contract is not clearly defined, the jointly developed software can be 91 | used separately and the developers of each respective part may be 92 | entitled to independent copyright. However, the copyright protection 93 | afforded in this context does not extend to the entire software 94 | developed. If a situation where co-developed software cannot be divided 95 | and no contract or other form of mutual agreement exists between the 96 | co-developers, then no single developer may prevent the other developers 97 | from exercising their rights apart from the right of transfer, but the 98 | benefits have to be fairly distributed amongst all the co-developers. 99 | 100 | ### Exclusive rights 101 | 102 | Software copyright holders enjoy the following rights: 103 | 104 | (a) Publication right 105 | 106 | (b) The right of authorship 107 | 108 | (c) Amendment right 109 | 110 | (d) Reproduction right 111 | 112 | (e) Distribution right 113 | 114 | (f) Lending right 115 | 116 | (g) Right to network Dissemination of information 117 | 118 | (h) Translation right 119 | 120 | According to the second paragraph of Article 10 of the Copyright Law, if 121 | the copyright holders allow others to exercise their rights, they are 122 | entitled to payment in accordance with the relevant provisions of the 123 | contract. By the same token, the owner of a software copyright may 124 | authorize others to exercise his or her software copyright and the right 125 | to receive remuneration, or fully transfer that copyright or 126 | renumeration right. 127 | 128 | ### Exceptions to exclusive rights 129 | 130 | Owners of lawful copies of software enjoy the following rights: 131 | 132 | (a) The right to install the software on a computer and other devices 133 | capable of processing information; 134 | 135 | (b) The right to make backup copies to prevent losses. These backup 136 | copies may not be made available to others for use by any means, and the 137 | owner must destroy the backup copies if he or she loses proprietorship 138 | of the lawful copy of the software; 139 | 140 | (c) To use the computer application software and to improve its 141 | functionality and performance by making necessary modifications; 142 | however, unless otherwise provided, without permission from the software 143 | copyright owner the modified software may not be supplied to any third 144 | party; 145 | 146 | In order to study and research the inner design and principle of a 147 | computer program, involving its installation, display, transmission, 148 | storage or other use, the granting of software copyright permission is 149 | subject to payment of remuneration. 150 | 151 | To authorize others to exercise activities covered by software copyright 152 | restrictions, the parties have to enter into a written contract. If 153 | there is no written contract or agreement expressly stipulating an 154 | exclusive license, the right to exercise the copyright has to be treated 155 | as non-proprietary. 156 | 157 | There are cases where such contracts are not necessary. Article 30 of 158 | the Computer Software Act explains the circumstances in which a 159 | copyright holder’s authorization is not required for reproducing and/or 160 | translating a computer program in order to obtain interoperability 161 | information. 162 | 163 | Article 30 is compulsory law, and contractual provisions to the contrary 164 | are deemed not to exist. However, exercising these statutory rights is 165 | often difficult in practice because the licensee generally has no access 166 | to the source code of the application, and it is not legal to enforce 167 | source code access for the purposes of interoperability. 168 | 169 | ### Dispute mediation 170 | 171 | The software copyright infringement dispute may be mediated. If the 172 | mediation is inadequate or the mediation achieves the agreement latter 173 | side to renege on the mediation promise, they can go to the People’s 174 | court to carry on litigation. If the litigant is not willing to mediate, 175 | may also go directly to the People’s court. 176 | 177 | ### Term of protection 178 | 179 | The software copyright’s protection period is 25 years, beginning from 180 | the initial publication of the software and ending on December 31 of the 181 | 25th year following. Before the expiration date of the protection, the 182 | software copyright owner may apply to the software registration 183 | management organization to get another 25 years, but the total 184 | protection period afforded to any software product cannot surpass 50 185 | years. 186 | 187 | ### Special measures 188 | 189 | When the owner of copyright is not able to protect his or her rights 190 | related to software provided in an infringing manner, the end recipient 191 | of the illegal code still has a duty to destroy or otherwise cease use 192 | of the code once they are made aware of the situation. However, they 193 | have recourse to seek compensation for this loss and its ancillary 194 | consequences from the original supplier of the infringing code. 195 | 196 | ## Unprotected software and non-commercial software 197 | 198 | Software that is an intellectual creation of the author is regarded as 199 | original and can obtain copyright protection, while non-original 200 | software is excluded from such protection. Third party revision or 201 | sharing without agreement from the software copyright owner or their 202 | legitimate successor is prohibited. 203 | 204 | Teaching activities, scientific research, and government agencies 205 | operating official functions can use software for non-commercial 206 | purposes; these non-commercial rights include the ability to make free 207 | copies of the software without the copyright owner or its legitimate 208 | successor’s agreement. However, the software’s name must be correctly 209 | mentioned in use and the exploiter should not infringe upon other rights 210 | which the owner and its legitimate successor enjoy. Additionally, after 211 | the copied software has completed its non-commercial use, it should be 212 | reclaimed or be destroyed properly and must not be used for other goals 213 | or be given to other people. 214 | 215 | ## Unprotected software and public domain software 216 | 217 | Only software that is an intellectual creation of the author can obtain 218 | copyright protection. Non-original software does not come into 219 | consideration for copyright protection and can, in principle, be used 220 | freely. 221 | 222 | Under Chinese law, public domain software is considered as software to 223 | which the author has given up all rights and on which no other party is 224 | able to enforce any rights. This software can be used, reproduced or 225 | executed freely without obtaining permission from a rights holder or the 226 | payment of a fee to such a party or their representatives. Public domain 227 | software may in certain cases even be presented by third parties as 228 | their own work, and by modifying the original work, third parties can 229 | take certain versions of such code out of the public domain again. 230 | 231 | The underlying principle is that software value can only be achieved 232 | through protection granted by intellectual property law. Under the 233 | general law in this field, value is presented by granting certain 234 | exclusive rights to the legal owner of a work, who may realize fiscal or 235 | other returns through contracts with third parties, with the proviso 236 | that such rights eventually cease and the work enters the public domain. 237 | This creates a circle of economic activity that supports industrial and 238 | economic development. 239 | 240 | Proprietary software and open source software (free software) differ 241 | only in terms of their circulation mechanism, and not in terms of the 242 | applicability of Copyright. 243 | 244 | ## Analysis of FOSS under Chinese law 245 | 246 | ### Copyrights 247 | 248 | From the view of most enterprises, software development differs from 249 | traditional creation of copyrighted work. It is no longer subject to a 250 | single person or even an organization. With the development of the 251 | Internet, very few people operate behind closed doors in the software 252 | industry. Building on the ideas and experience of predecessors' has 253 | become a crucial factor to the development of software technology. 254 | 255 | #### Qualification of FOSS 256 | 257 | Copyright law in China operates under the principle of “self-executing” 258 | protection. After a creative good is completed it is automatically 259 | subject to copyright protection regardless of whether it is published or 260 | registered. The right to publish source code — an intrinsically 261 | important part of the FOSS — belongs to the software’s “publication 262 | right” range. The protections of software copyright may be considered as 263 | a mix of applicable law and contracts between the rights holder and any 264 | third parties. This model is from the province of international 265 | conventions and national copyright laws of the US, and the protection of 266 | software copyright law in China is no exception. 267 | 268 | One pertinent example is that the Chinese government issued a special 269 | regulation on software copyright protection as part of the Copyright Law 270 | with the subject “Computer Software Protection Regulations”. This 271 | provides that without the copyright owner or his legal transferee’s 272 | consent the use of software is equal to copyright infringement; in the 273 | “Computer Software Protection Regulations” Article 18 and 19 the 274 | provision of software licenses and transfer of rights must be in the 275 | form of a written agreement. In this sense, protection of software 276 | copyright in China and international copyright norms are virtually 277 | identical. 278 | 279 | Article 12 of the Copyright law of the people’s republic of China states 280 | that where a work is created by adaptation, translation, annotation or 281 | arrangement of pre-existing work, the copyright in the work shall be 282 | enjoyed by the adaptor, translator or arranger, provided that the 283 | exercise of such copyright shall not prejudice the copyright of the 284 | original work. Interpretation of the original author should be via their 285 | consent and include remuneration, while right of authorship remaining 286 | with that party. If the interpretation is created out the period of 287 | protection for creative works, it should be with the original author’s 288 | consent, but no remuneration is necessary. Naturally the original work 289 | shall not be violated or distorted in the process of interpretation. 290 | 291 | Article 13 of the Copyright law provides for co-ownership of copyrighted 292 | works, covering situations where a work is created jointly by two or 293 | more co-authors. Put simply, in these cases copyright in the work shall 294 | be enjoyed jointly by those co-authors while any person who has not 295 | participated in the creation of the work may not claim co-authorship. If 296 | a work of joint authorship can be separated into independent parts and 297 | exploited separately, each co-author may be entitled to independent 298 | copyright in the parts they have created, provided that the exercise of 299 | such copyright shall not prejudice the copyright in the work as a whole. 300 | The general consideration is that the creation of a work of joint 301 | authorship requires cooperation and arrangement between the authors. If 302 | one party does not get consent from the other, then each party only has 303 | copyright and its attendant right of modification or distribution in 304 | their own section of the work. 305 | 306 | #### Rights of the original co-authors 307 | 308 | “Participation” in co-authorship refers to expression in the form of a 309 | creative and intellectual work applied either in conceptual planning or 310 | writing operations. If a party does not do creative work that falls 311 | under this definition of participation, then they cannot become regarded 312 | as a joint author. This participation and its attendant copyright in the 313 | work of joint authorship can be further regarded in two different ways, 314 | either with the whole coauthored work taking a form that can be split 315 | into individually authored sections or a form that cannot be split into 316 | separate parts. The ability to distinguish individual contributions as 317 | opposed to entirely combined contributions naturally has implications 318 | for personal rights and property rights and their exercise in market 319 | transactions. 320 | 321 | Unless the components of software can be clearly distinguished, it is 322 | almost certainly going to be defined as an “indivisible work” under 323 | Chinese law. These are works whereby it cannot be concluded clearly what 324 | the individual contribution of every author is, e.g. when two authors 325 | write the source code together. 326 | 327 | Where a work is created jointly by two or more co-authors, the copyright 328 | in the work shall be enjoyed jointly by those co-authors. Any person who 329 | has not participated in the creation of the work may not claim the co- 330 | authorship. 331 | 332 | If a work of joint authorship can be separated into independent parts 333 | and exploited separately, each co-author may be entitled to independent 334 | copyright in the parts that he has created, provided that the exercise 335 | of such copyright shall not prejudice the copyright in the joint work as 336 | a whole. 337 | 338 | On the other side, if a work of joint authorship can’t be separated into 339 | independent parts and exploited separately, the copyright in the work 340 | shall be enjoyed jointly by those co-authors, in which case the authors 341 | are free to regulate the exercise of the copyrights by agreement. If 342 | they can’t reach any kinds of agreements relating to the moral rights 343 | and have no cogent reasons, No party shall prevent exercise of the 344 | rights except for the transfer request, but the proceeds should 345 | distribute to all the other parties with attendant rights. 346 | 347 | #### Authors of derivative works 348 | 349 | FOSS often falls under the category of a derivative or composed work. 350 | Derivative works and composed works are works whose originality may be 351 | definable, but whose existence depends on existing work(s), from which 352 | at least some original characteristics are copied. 353 | 354 | Where a work is created by adaptation, translation, annotation or 355 | arrangement of a pre-existing work, the copyright in this work thus 356 | created shall be enjoyed by the adaptor, translator or arranger, 357 | provided that the exercise of such copyright shall not prejudice the 358 | copyright in the original work. 359 | 360 | The copyright in a work created by compilation shall be enjoyed by the 361 | compiler, provided that the exercise of such copyright shall not 362 | prejudice the copyright in the pre-existing works included in the 363 | compilation. The authors of such works included in a compilation as can 364 | be exploited separately shall be entitled to exercise their copyright in 365 | their works independently. 366 | 367 | So, the author(s) of the derivative or composed work are the only 368 | persons with a copyright on their work. This is not independent and full 369 | copyright, which is restricted, however, because the derivative or 370 | composed work cannot be operated without the consent of the holder of 371 | the copyright on the original work. In the case of FOSS licenses such 372 | consent is not a problem, subject to respecting the terms and conditions 373 | (e.g. regarding further distribution of the derivative work). 374 | 375 | #### The assignment of copyrights 376 | 377 | In order to control the rights related to a specific FOSS project, it 378 | may be useful to collect all copyrights concerning this project within 379 | one organization. The existence of such an organization can simplify the 380 | management and enforcement of joint rights, with the collective 381 | management of copyrights is usually, but not necessarily, regulated by 382 | the fiduciary transfer of copyrights. This assignment is relatively 383 | trivial, with ownership of copyright in a commissioned work being 384 | assigned via contract between the commissioning and the commissioned 385 | parties. In the absence of a contract or of an explicit agreement in the 386 | contract, the copyright in such a work shall belong to the commissioned 387 | party. 388 | 389 | ### Moral copyrights 390 | 391 | FOSS originated in America, and therefore attaches less importance to 392 | the moral rights of the author than it might under a country governed by 393 | Civil Law. The Open Source Definition specifies that the author of 394 | software distributed under a FOSS license cannot oppose the use of the 395 | software by certain people and groups or for certain areas of 396 | application. 397 | 398 | For example, according to article 22, in some cases, a work may be used 399 | without permission from, and without payment of remuneration to, the 400 | copyright owner, provided that the name of the author and the title of 401 | the work shall be indicated and the other rights enjoyed by the 402 | copyright owner by virtue of this Law shall not be prejudiced. 403 | Furthermore, article 23 specifies the statutory license of copyright. 404 | 405 | Whether an author is able to give up all his rights on a work is more 406 | complex under Chinese law, as such law contains the principal 407 | indefeasibility of the moral rights. Although renouncement of moral 408 | rights is possible in principle, the global renouncement of the future 409 | exercise of moral rights is void, and this naturally also applies to 410 | moral rights on software. 411 | 412 | The author of a work distributed under the FOSS license shall therefore 413 | probably be able to oppose any use of his work by people or groups or 414 | for certain purposes which affects his honour or reputation, based on 415 | his moral rights. 416 | 417 | Moral rights are reflected in derivative works. The author of the 418 | original work will therefore, based on his moral rights, not only be 419 | able to oppose the use by third parties of his work, but also the use of 420 | derivative works which affect his honour or reputation. 421 | 422 | ### Enforcing FOSS licenses 423 | 424 | The question whether a FOSS license can be enforced depends on whether a 425 | valid license was issued. The essential questions are: (i) between whom 426 | is a license granted, and (ii) has the license been validly granted? 427 | 428 | #### Contracting parties 429 | 430 | In China, the Contract Law governs all kinds of licenses, but it can be 431 | questioned whether FOSS licenses fall into the sphere of the Contract 432 | Law of China. There is no clear stipulation about FOSS licenses in its 433 | wording, and no case has yet came before the People’s court to provide a 434 | ruling about the validity of the license. Pending this, a more general 435 | interpretation in view of existing rules and norms may be proposed.A 436 | creative work that needs two or more people to complete normally 437 | involves an agreement to arrange copyright allocation or grants. If one 438 | author makes his work available under a FOSS license, the answer is 439 | clear: the license is reached between the licensee and the author. But 440 | in some cases, the works are finished by different people and they are 441 | all contributed to the programs. At this time, the question becomes more 442 | complicated. With whom the licensee reaches a contract depends on the 443 | different cooperation methods applied by the co-authors. 444 | 445 | If a work of joint authorship can be separated into independent parts 446 | and exploited separately, each co-author may be entitled to independent 447 | copyright in the parts that he has created, provided that the exercise 448 | of such copyright shall not prejudice the copyright in the joint work as 449 | a whole. This would allow for the author who created the independent 450 | parts to grant a license to contracting parties based on his or her 451 | individual section of the work. Meanwhile, if the work cannot be 452 | separated in such a fashion, and the authors do not collectively agree 453 | on general license terms, a license and implied contract should be 454 | reached between the licensee and every author of the program. 455 | 456 | Most FOSS licenses solve this through agreements such as BSD, Apache and 457 | GPL licenses. For example, the GPL creates a contractual bond between 458 | the licensee and all authors in the chain. GPL version 3 contains the 459 | following clause: “Each time you convey a covered work, the recipient 460 | automatically receives a license from the original licensors, to run, 461 | modify and propagate that work, subject to this License” and GPL version 462 | 2 states that “each time you redistribute the Program (or any work based 463 | on the Program), the recipient automatically receives a license from the 464 | original licensor…” While apparently effective in US and other markets 465 | and internally consistent with the rest of the license, it is not clear 466 | that this construction will be regarded valid under China Copyright Law. 467 | 468 | #### Validity of the FOSS licenses 469 | 470 | An author chooses a FOSS license because he wants to distribute his work 471 | and make it available to others — possibly with certain restrictions. 472 | For him it is important that he can enforce these restrictions. However, 473 | the status of FOSS author rights in China is not entirely clear. 474 | 475 | The most common use of FOSS code development and therefore the 476 | application of the licenses is through the internet. While conventional 477 | IT agreements are reached by the explicit acceptance of the terms and 478 | conditions by the licensee following the signing of the terms and 479 | conditions, FOSS software is made available with some simple 480 | specification on a website or in the source code form that it concerns 481 | FOSS. The license usually does not need to be explicitly accepted. In 482 | other words, the act of opening the packaging or clicking “I agree” 483 | button — methods to reach a licensing agreement are generally considered 484 | to be valid and are covered by “The electronic signature law of the 485 | People’s Republic of China” — tend not to apply with FOSS. 486 | 487 | Having to click and confirm every time could in some cases interfere 488 | with the use of the software, according to the international common 489 | practice. The Open Source Definition opposes demanding explicit 490 | agreement with the license conditions with the aim of confirming the 491 | agreement between licensor and licensee. 492 | 493 | The question is whether in these cases a valid license is possible. The 494 | answer to this question is not clear under Chinese law. The reason is 495 | that the user of a copyright protected work needs to be able to indicate 496 | the grounds on which he is able to use the work. FOSS is still under the 497 | protection of present copyright law and using the software without the 498 | author’s consent implies a copyright infringement, with the implication 499 | that everyone who wants to use software which they find via the 500 | internet, they should actively look for the license, at least if they 501 | know such software will be under the terms of a license. If the user 502 | cannot prove that they elected obey the license, they must refrain from 503 | using it. But without a mechanism to do so, a potential grey area 504 | exists.Of course it is doubtful whether a user would benefit from 505 | disputing the existence of a FOSS license. If the user disputes the 506 | conclusion of the FOSS license, this implies no legally valid copyright 507 | license was granted and the user therefore is not allowed to use the 508 | software. Renouncement of copyrights should not be open to conjecture, 509 | but needs to be proven. The availability of a work on the internet does 510 | not mean it becomes public domain. 511 | 512 | #### Validity of the contract 513 | 514 | Rights holders can place contracts and any party violating the agreement 515 | must assume responsibility for their actions. When an author chooses a 516 | FOSS license it is relatively clear that he wants to distribute his work 517 | and make it available to others — possibly with certain restrictions. 518 | For him it is important that he can enforce these restrictions. 519 | 520 | The exception in China is that for public welfare or personal use, 521 | people can accord to the principle of reasonable use, and do not need to 522 | conclude contracts or pay any remuneration in this context. This does 523 | not preclude the necessity of the authors and users signing a contract 524 | for licensing, but may impact some of its scope. It would be expected 525 | that such a contract would include licensing rights, whether licensing 526 | right is exclusive or not, the scope and space of using, the 527 | remuneration’s standards and methods if applicable and the events that 528 | may be regarded as breach of contract. 529 | 530 | Whatever the situation, the Regulation for Computer Software Protection 531 | in China provides that the licensing of software copyright shall be in 532 | possession of a contract for licensing. And the licensee may not 533 | exercise the right that has not been licensed by the software copyright 534 | owner in the contract for licensing. 535 | 536 | Normally, rights holders in FOSS write programs collaboratively under a 537 | license that permits users to use, change, copy, and distribute the 538 | works free of charge, provided that they follow the licensing guidelines 539 | of the software. This can cause some confusion because commercial 540 | software doesn’t usually allow you to change a program and redistribute 541 | it unless you specifically negotiate that in an additional license. But 542 | in both cases if you make copies or distribute modified versions of the 543 | software without permission, you infringe the copyright, and you must 544 | take the responsibility. By implication when locating software on the 545 | internet it is very important to explore what license is being used. If 546 | the user can’t prove that he knows the content of the license applicable 547 | to the work, he must refrain from using it, and cannot seek to assume 548 | that no license or contract is in play. Only in cases where the terms 549 | applied to the contract are manifestly unfair can a move be taken to 550 | void its applicability. 551 | 552 | ### Waiver and liability 553 | 554 | Typically, FOSS licenses contain very strong exoneration clauses, which 555 | discharge the author from all liability. The reason for this is that 556 | FOSS is often made available without a fee, as a result of which the 557 | author generates insufficient income to pay for liability insurances and 558 | legal costs. In China, the validity of this clause is not entirely 559 | clear, with the reason being questions that arise about the extent to 560 | which such exoneration clauses comply with the general validity 561 | requirements under Chinese law due to the existence of no specific legal 562 | regulation of FOSS licenses. Liability requirements are scattered in 563 | Chinese civil law, with an example being that Article 53 of the contract 564 | law of PRC states that the following types of exoneration in contracts 565 | are invalid: 566 | 567 | (i) that causes the personal injury, 568 | 569 | (ii) that causes property loss by intentional misconduct or gross 570 | negligence. 571 | 572 | Meanwhile, Article 52 in the contract law stipulates: if only there is 573 | one of following state, the contract shall be invalid: 574 | 575 | (i) obtain the contract by means of fraud or stress, at the same time 576 | causes damage to the interests of the state. 577 | 578 | (ii) viciously collude, to damage the interests of the state, the 579 | collective, or a third party. 580 | 581 | (iii) use legal form to cover up illegal purpose. 582 | 583 | (iv) do harm to the public interests. And 584 | 585 | (v) And violate the compulsory laws or administrative rules. 586 | 587 | Generally speaking when considering FOSS license as a form of civil 588 | contract, all the regulations of the contract behaviour are available 589 | for the FOSS license. But with such licenses being quite different from 590 | typical contracts there remain areas of differing potential 591 | interpretation and therefore potential confusion. One remedy in the mid 592 | to long-term is to add FOSS licenses as a special form of contracts in 593 | the contract law of PRC. 594 | 595 | Chinese legislation doesn’t normally perceive a large difference between 596 | guarantee liability from amateur and professional sellers, but there are 597 | some considerations to take into account regarding FOSS. Theoretically, 598 | there is difference if the stipulating party be considered as a 599 | professional seller. The professional seller is deemed to know the 600 | defect in the software, and in pursuance of article 153 of the contract 601 | law of PRC, contractual provisions of non- indemnity for surface or 602 | hidden quality defects have no effect if the seller knew about the 603 | defect at the time of the sale. Additionally, according to Article 150, 604 | the seller has the duty to guarantee defects. The professional seller of 605 | FOSS will therefore be liable in principle for issues with FOSS code 606 | provided unless he can also provide proof of ignorance regarding 607 | defects. Such proof may be hard to provide. 608 | 609 | ### The copyleft principle 610 | 611 | #### Principle 612 | 613 | A characteristic found in many FOSS licenses is the so-called “copyleft” 614 | principle, which is a new and different way of enforcing copyright in 615 | software. FOSS licenses which incorporate the copyleft principle lay 616 | down by contract that everyone in the chain of consecutive users, in 617 | return for the right of use that is assigned, needs to distribute the 618 | improvements he makes to the software and the derivative works he makes 619 | under the same conditions to other users as those under which he 620 | received the original work. In other words, software which incorporates 621 | copyleft FOSS needs to be distributed as copyleft FOSS. FOSS means 622 | sharing with each other, instead of monopolizing. 623 | 624 | This has the consequence that it is not possible to incorporate 625 | copyright protected parts of copyleft software in proprietary licensed 626 | work directly.The copyleft principle can restrict the commercial 627 | possibilities of the software, at least regarding business models or 628 | product deployments that assume proprietary behaviour. Sometimes 629 | warnings are issued for the dangers that companies could encounter if a 630 | negligent or vindictive employee were to incorporate a piece of copyleft 631 | code in the code of proprietary software and parties relatively new to 632 | FOSS worry that a company would be obliged to make its proprietary 633 | software available under a copyleft FOSS license. Although caution is 634 | necessary regarding the use of the third party work, one can ask oneself 635 | whether such scenarios are realistic under Chinese law. Copyright 636 | protection is still strong and absolute in current Chinese legal system. 637 | The sanction for incorporating copyleft code in proprietary software 638 | will usually be restricted to a prohibition to distribute the software 639 | which is in breach or the obligation to remove this piece of code from 640 | the program. If the unlawful use has caused damage to the author, this 641 | damage will need to be reimbursed, but not more than they actually 642 | suffered damage. As such, the implications of copyleft are restricted to 643 | normal measures of expected remedy under copyright law. 644 | 645 | #### Validity 646 | 647 | Questions regarding the validity and implications of copyleft clauses 648 | coincide with questions regarding whether an author is able to validly 649 | lay down how derivative works need to be distributed. The answer to this 650 | question under Chinese law is not definitive. 651 | 652 | The copyright owner or copyright-related right holders are able to lay 653 | down the use of the work for a particular use, or link certain 654 | conditions to this. Such a right was recognized and based on an 655 | interpretation of Article 9 of the copyright law of 27 October 2001. 656 | According to the rule, the copyright owner can determine the destination 657 | of a work, to copy or distribute, to rent or to exhibit, to performance 658 | or screening, etc. They also can license or transfer the rights, with an 659 | example being that a copyright collective management organization can 660 | claim in its own name for copyright owners, and can carry on lawsuit and 661 | arbitration activities as copyrights owner. 662 | 663 | The right to determine the destination not only applies inter partes, 664 | but “erga omnes”, provided that the third parties, in all 665 | reasonableness, should know what the destination is. The author can 666 | therefore lay down the copyleft condition based on his right to 667 | determine the destination of his work, though aspects of derivative work 668 | use/reuse may challenge this. According to the provisions of Article 12 669 | of the copyright law, the author of the original work has no rights on 670 | the derivative work; that’s to say “A work derived from adaptation, 671 | translation, annotation or arrangement of a pre-existing work, the 672 | copyrights belongs to the author of the derivative work which be 673 | operated doesn’t subject to the consent of the copyright owner of the 674 | original work, but the exercise of such copyright shall not infringe the 675 | copyright in the original work”. 676 | 677 | In summary, all rights are subject to abuse, including the copyright. An 678 | author can therefore not randomly exercise his economic and moral 679 | rights. A lawful tangible or moral interest needs to be proven. The 680 | implications of Article 9 are in no measure overridden by those of 681 | Article 12, but the applicability of both will probably have an impact 682 | in any case involving right of use issues and FOSS licenses in a court 683 | of law. 684 | 685 | The traditional use of copyrighted work in China would see approval from 686 | a right holder subject to some form of remuneration, and the simple 687 | outcome that other situations probably constitute infringement. But 688 | licensing a work under a copyleft restriction will in principle not 689 | constitute an abuse of rights, and with “reasonable use”, you can make 690 | use of the work without the consent of the copyright holder and without 691 | the need to pay remuneration. Of course, the licensing or assignment 692 | contract of the copyright owner has not explicitly been transferred, and 693 | you can’t randomly exercise the rights without the consent of the 694 | copyright owner, otherwise will constitute infringement. 695 | 696 | Viewed formally under Chinese law, a FOSS license is a contract. 697 | According to the contract law, it is effective as long as the parties 698 | signed the contract voluntarily, it contains no violation of the 699 | mandatory regulations applicable to contracts, and if the parties 700 | strictly obey the law to exercise rights and perform obligations. A 701 | legitimate moral interest applied by a rights holder could be the 702 | decision to keep his work within the FOSS community, also in a 703 | derivative format, through the measure known as copyleft. Companies 704 | which have constructed a business model around distributing software 705 | under copyleft restrictions will usually be able to prove the existence 706 | of a legitimate interest. 707 | 708 | ### Damages 709 | 710 | Damage caused by copyright violations are compensated under copyright 711 | law in accordance with the general civil liability of the illegal act. 712 | This implies that the injured party of a copyright breach needs to be 713 | compensated. 714 | 715 | According to the provisions in Article 47 of the copyright law the 716 | copyright administration has the rights to stop the infringement, 717 | confiscate the illegal income, destroy the infringing reproductions, and 718 | may impose fines under the condition of infringing the public interests. 719 | If the circumstances are serious, they also can confiscate materials, 720 | tools, and other equipment which was used for making infringing 721 | reproductions. The one who infringe the copyright can be considered as 722 | constituting a crime, and shall bear criminal responsibility. 723 | 724 | According to Article 36 of the regulations of copyright law of 2 August 725 | 2002, parties who have violated Article 47 of the copyright law and also 726 | offended public interest should be punished with a fine that is 3 times 727 | of the income of the illegal operation or 10 thousand Yuan if the income 728 | of the illegal operation is difficult to calculate. 729 | 730 | Infringements of software copyright are regarded in the same light as 731 | infringements of every other copyright. The aforementioned principle is 732 | therefore applicable in case of copyright infringements of software. 733 | 734 | Additionally, according to the provisions in article 23 and article 24 735 | of the software protection regulations, all actions which have infringed 736 | the software copyright should hold the following civil liabilities: 737 | 738 | 1. Stop the infringement 739 | 740 | 2. Eliminate the bad effects 741 | 742 | 3. Apologize 743 | 744 | 4. Compensation for the losses 745 | 746 | 5. Civil sanctions. 747 | 748 | FOSS essentially seeks to provide software as the effective public 749 | intellectual property of all mankind, and allows for sure software to be 750 | distributed freely between the persons of preparation and application. 751 | Any restrictions of the intellectual property rights will eventually 752 | limit and obstruct its development. 753 | 754 | Therefore certain legal experts may assume that the damage to the 755 | copyright owner will be limited, as he has made his work freely 756 | available via the internet. 757 | 758 | However, the essence of FOSS is not free, but “thought sharing, 759 | knowledge sharing and resource sharing”. The user can freely operate, 760 | copy, distribute, research and improvement the software, and avoid the 761 | intervening from the proprietary software. One can modify the program to 762 | make it better, make it more applicable. One can experience the 763 | excitement which comes from the achievement which be improved more 764 | efficiency. But one retains certain obligations to all others. 765 | 766 | Besides establishing a reputation and recognition with the related value 767 | creation, an author can have other reasons to make his work “freely 768 | available”. The author may also have a direct monetary advantage from 769 | the free distribution of his work. The simplest way is circulating the 770 | free works f advertising. Another way is granting specific services to 771 | support the software. Taking this further into a specific economic 772 | example, the free circulation of the work can provide that it has as 773 | many users as possible, allowing the author to generate income from the 774 | provision of technological support and consulting services, or 775 | “licensing proprietary add-ons”. Another business model is the so-called 776 | dual licensing model. This model uses — as the name allows us to 777 | deduce — two different licenses. The first license is often a copyleft 778 | license intended to provide a wide range of users. The second license 779 | without the copyleft system can then leveraged to obtain payment from 780 | interested parties who want to avoid the copyleft principle. 781 | 782 | ## FOSS cases in China 783 | 784 | No cases have been reported yet (June 2011). 785 | 786 | [^china_bio]: *Yang Xia is an associate professor at the Law School of Beijing Normal 787 | University, one of the oldest universities in China. The main research 788 | field of Mr. Yang Xia focuses on computer law, software law and high 789 | technology law. Yang Xia teaches Science and Technology law, Computer 790 | law, Intellectual Property law and Legal English. Yang Xia was awarded 791 | the European Union Eramus Mundus scholarship for his studies at the EU 792 | law center of the University of Warsaw and is member of CLAST (China Law 793 | Association on Science and Technology). 794 | * 795 | 796 | -------------------------------------------------------------------------------- /src/50-Finland.markdown: -------------------------------------------------------------------------------- 1 | # Finland 2 | 3 | *Henri Tanskanen[^finland_bio1] and Martin von Willebrand[^finland_bio2]* 4 | 5 | ## Introduction to software protection under Finnish law 6 | 7 | ### Body of law 8 | 9 | In Finland, copyright protection of software is regulated under the 10 | Copyright Act, originally enacted on 8 July 1961 and amended multiple 11 | times thereafter. The current version of the Act is available in Finnish 12 | and Swedish via the Finlex website of the Ministry of Justice.[^finland_1] An 13 | unofficial translation of the Act by the Ministry of Justice is also 14 | available, although it is not as up to date as the Finnish and Swedish 15 | versions. The Copyright Act provides for stipulations on copyright and 16 | many neighbouring rights, such as the right to a database and the right 17 | to directories. Software copyright is covered by the general 18 | stipulations on copyright and a number of software-specific 19 | stipulations. 20 | 21 | The Finnish Copyright Act implements the Council Directive of 14 May 22 | 1991 on the legal protection of computer programs (91/250/EEC, as 23 | amended) by way of amendments enacted on 11 January 1991 and 7 May 24 | 1993.[^finland_2] 25 | 26 | In the current Copyright Act, the relevant articles containing computer 27 | program specific stipulations are: 28 | 29 | Article 1, second paragraph 30 | literary work 31 | 32 | Article 25 j 33 | copying and examination 34 | 35 | Article 25 k 36 | reverse engineering 37 | 38 | Article 40 b 39 | employment relationship 40 | 41 | Article 56 c 42 | sanction on distribution of protection circumvention 43 | 44 | In addition to the above, exceptions concerning computer programs can be 45 | found in Art 11, second paragraph; Art 12, second paragraph; Art 19, 46 | third paragraph; Art 50a, fourth paragraph; Art 50b, third paragraph; 47 | Art 50c, fifth paragraph and Art 56a, second paragraph. 48 | 49 | ### Copyright Act: Object of protection 50 | 51 | Computer programs are protected by copyright as literary works, as 52 | stipulated in Article 1 of the Copyright Act. In order to benefit from 53 | the protection, a computer program needs to be original in the sense 54 | that it is the author’s own intellectual creation.[^finland_3] As stipulated in 55 | paragraph 3 of Article 1 of the Computer Programs Directive, no other 56 | criteria may be used to determine whether the program can be subject to 57 | copyright protection. Based on this, it has been argued that computer 58 | programs are eligible for copyright protection under less stringent 59 | requirements compared to other literary works which need to surpass a 60 | certain threshold of originality.[^finland_4] 61 | 62 | According to the preparatory works to amendments of the Copyright Act 63 | (Government Proposal HE 161/90; Committee Report KM 1987:8) as well as 64 | several subsequent decisions of the Copyright Council, the eligibility 65 | for copyright protection in the case of a computer program is to be 66 | determined, first and foremost, by assessing the choices made by the 67 | programmer in implementing a solution to a computing or data processing 68 | problem. A computer program is protected by copyright if it can be 69 | considered as an independent and original result of the author’s 70 | creative work. If the computing or data processing problem at hand has 71 | only one solution determined by external factors, the resulting computer 72 | program does not represent the author’s original creative contribution 73 | and is not eligible for copyright protection. The same goes for “simple 74 | programs containing only a series of measures that can be deemed as 75 | axiomatic by a professional” as well as “commonly applied solutions” to 76 | programming tasks.[^finland_5] 77 | 78 | The case-law on computer programs and eligibility for copyright 79 | protection is somewhat scarce, consisting mainly of opinions issued by 80 | the Copyright Council.[^finland_6] In cases where the Copyright Council has 81 | stated its opinion on whether a particular program is eligible for 82 | copyright protection, the Council has mainly relied on one of the two 83 | following tests, i.e., assessing (a) whether there would have been 84 | several alternative programming solutions to the problem at hand, or (b) 85 | whether anyone independently embarking on the same programming task 86 | could have ended up with a similar outcome. In light of the fact that 87 | there are usually several possible solutions to any programming task, 88 | the level of originality required for copyright protection of a computer 89 | program can be safely assumed to be rather low. 90 | 91 | ### Authors/Beneficiaries 92 | 93 | Copyright to a work, such as a computer program, belongs to the author. 94 | An author is always a natural person, since only individuals are able to 95 | author intellectual creations. 96 | 97 | There is only one automatic transfer of copyright under the Copyright 98 | Act. Under Article 40 b of the Act, if a computer program and a work 99 | directly relating to it have been created in the fulfilment of duties 100 | arising from an employment relationship, copyright to the program and 101 | the work passes to the employer. The same applies to the creations of 102 | functionaries of public entities. 103 | 104 | The concept of a computer program covers software code both in source 105 | code and binary form. Source code commentaries in the code fall under 106 | the definition of computer software, or at least under the concept of 107 | “works that directly relate to” computer software. Source code 108 | documentation as well as other supporting material classify as works 109 | directly related to computer software.[^finland_7] Supporting material can 110 | consist of, e.g., user manuals, instructions and the like. Other works 111 | contained in the software (such as text, music, pictures, forms and 112 | movies) may fall under the definition of “works that directly relate to 113 | it”, but it is not always certain to what extent this is the case. 114 | According to the preparatory works of the Copyright Act (HE 161/90), a 115 | text file contained within the program, for example, would fall under 116 | the definition. 117 | 118 | The right to a database created by an employee or a public functionary 119 | is passed to the employer or public body in a similar manner. 120 | 121 | ### Exclusive rights 122 | 123 | The general exclusive rights stipulated in the Copyright Act apply to 124 | computer programs. According to Article 2 of the Copyright Act, the 125 | economic rights are comprised of the exclusive right to control the work 126 | by (a) reproducing copies and (b) making the work available to the 127 | public in original or altered form, as a translation or adaptation or in 128 | another literary or artistic form, or by any other technique. 129 | 130 | The reproduction of a copy comprises reproduction in whole or in part, 131 | directly or indirectly, temporarily or permanently and with any means 132 | and in any form. Transferring of a copy to a device in which it can be 133 | performed is also considered reproduction. 134 | 135 | Making the work available to the public occurs when 1) the work is 136 | communicated to the public by wire or by wireless means, including in 137 | ways that members of the public may access the material from a place and 138 | at a time individually chosen by them; 2) the work is publicly performed 139 | to an audience present at a performance; 3) a copy of the work is 140 | offered for sale, rental, lending or it is otherwise distributed to the 141 | public; or when 4) the work is displayed publicly without technical aid. 142 | The concepts of public performance and communication to the public 143 | include the performance and communication of a work to a relatively 144 | large closed circle provided that there is an intention to make profit. 145 | 146 | ### Exceptions to exclusive rights 147 | 148 | Article 19 of the Copyright Act stipulates that the first sale in the 149 | European Economic Area of a copy of a program with the consent of the 150 | right holder shall exhaust the distribution right of that copy within 151 | the Area, with the exception of the right to control further rental or 152 | lending of the program or a copy thereof. 153 | 154 | Article 25 j provides that 155 | 156 | (1) In the absence of an express contractual provision, no authorization 157 | by the right holder is required for the lawful acquirer to make any such 158 | copies of or alterations to the computer program which are necessary for 159 | using the program for the intended purpose, including error correction. 160 | 161 | (2) The reproduction of the program by way of a back-up copy by a person 162 | having a right to use the computer program may not be prevented, insofar 163 | as that copy is necessary to use the program. 164 | 165 | (3) The person having the right to use a copy of the computer program is 166 | entitled, without the authorization of the right holder, to observe, 167 | study or test the functioning of the program in order to determine the 168 | ideas and principles which underlie any element of the program, provided 169 | that he or she does this in connection with loading, displaying, 170 | running, transmitting or storing the program. 171 | 172 | Essentially, the above article restates the three exceptions under 173 | Article 5 of the Computer Programs Directive. The exceptions (2) and (3) 174 | above are mandatory, meaning that a contract stipulation to the contrary 175 | is void. 176 | 177 | Article 25 k of the Copyright Act explains in detail the circumstances 178 | in which no authorization of the right holder is required for the 179 | reproduction and/or translation of a computer program provided that such 180 | actions are necessary for obtaining the information necessary for the 181 | interoperability of an independently created computer program with other 182 | programs. This exception is mandatory, as well, and a contract 183 | stipulation to the contrary is void. 184 | 185 | ### Moral rights 186 | 187 | General stipulations of the Copyright Act on moral rights apply to 188 | computer programs, as well. Moral rights under Finnish law are comprised 189 | of the paternity right and the right of respect. Paternity right means 190 | that in any reproduction or dissemination of the work to the public the 191 | author has to be stated in accordance with good practice. The right of 192 | respect, in turn, means that modifications of the work must not offend 193 | the literary or artistic value or originality of the author, and that 194 | they may not be made available to the public in any manner or form that 195 | is offensive to the author. 196 | 197 | Due to the nature of computer programs, the moral rights are considered 198 | to have only minor importance. Computer programs can hardly be modified 199 | in a way offending the author, and good practice in the field does not 200 | normally require stating the name of the author where the author is an 201 | employee and the copyright holder is the employer.[^finland_8] 202 | 203 | Moral rights cannot be transferred, and they may be waived only where 204 | the use of the work is limited in scope and character. This applies 205 | equally to the right of paternity and to the right of respect. 206 | 207 | ### Term of protection 208 | 209 | The term of copyright protection for computer programs is the same as 210 | for other works, i.e., 70 years following the year of death of the 211 | author (Article 43). In the case of multiple authors, the term is 212 | calculated from the year of death of the last living author. In the case 213 | of derivative works, the copyright term of the right of the modifier is 214 | independent of the copyright term of the original work, i.e., the 215 | copyright to the modifications lasts for 70 years following the death of 216 | the author of the modifications.[^finland_9] 217 | 218 | ### Copyright assignment 219 | 220 | Copyright can be assigned in full, except for moral rights. Most 221 | importantly, moral rights include the obligation to state the author 222 | when distributing the work to the public as well as, although hardly 223 | applicable to computer programs, the prohibition to alter the work in a 224 | way that offends the author. Under Finnish law, copyright assignment is 225 | not subject to any requirements of form and oral agreements, for 226 | example, are entirely possible. However, for the purposes of evidence, 227 | written contracts are recommended. 228 | 229 | Unless otherwise agreed, a copyright assignment does not include the 230 | right to further assign the copyright or the right to modify the 231 | assigned work. If full assignment is the objective, these rights should 232 | be expressly included in any assignment contract. 233 | 234 | Regarding choice of law, it seems possible that copyright originating 235 | under the Finnish Copyright Act can be assigned under laws of another 236 | jurisdiction, if such applicable law is agreed upon in the assignment 237 | contract. However, this is not completely certain. The uncertainty 238 | relates to the question of whether the freedom of contract can cover all 239 | aspects of a right based on law. 240 | 241 | In the relationship between an employer and an employee, copyright to a 242 | computer program and a related work passes automatically to the employer 243 | based on Article 40 b of the Copyright Act.[^finland_10] Copyright to any other 244 | type of work will remain with the employee, unless a specific agreement 245 | on copyright assignment has been entered into in the form of an 246 | employment agreement or otherwise. In lack of a specific agreement on 247 | assignment, the employer will receive a right of use. The exact coverage 248 | of such right of use is unclear, but at a minimum, it covers the primary 249 | use of the work known at the time of the creation of the work. 250 | 251 | In the relationship between a contractor and a procurer, no distinction 252 | is made between computer programs and other types of works. The 253 | copyright to the created work is held by the creator of the work, i.e., 254 | the contractor. If no explicit assignment is agreed upon, the contractor 255 | will continue to hold the copyright to the created work and the procurer 256 | will receive a right of use in accordance with the agreement between the 257 | parties. In the absence of a specific agreement, a right of use is 258 | presumed and derived from the joint purpose of the parties. 259 | 260 | An unpaid contributor is treated similarly to a contractor. In lack of a 261 | specific agreement on assignment or right of use, a right of use is 262 | presumed and derived from the joint purpose of the parties. 263 | 264 | ### Special measures 265 | 266 | The Copyright Act contains civil law sanctions for a breach of copyright 267 | and some provisions on criminal sanctions regarding lesser 268 | copyright-related crimes. The Penal Code, in turn, contains criminal 269 | sanctions on more severe copyright-related crimes. 270 | 271 | There are some criminal consequences that are specific to computer 272 | programs. For example, it is a criminal offence to “distribute to the 273 | public for the purpose of gain, or for such purpose keep in possession, 274 | any device whose sole purpose is the unauthorized removal or 275 | circumvention of a technological means protecting a computer program” 276 | (Article 56 c of the Copyright Act). 277 | 278 | However, the provisions under Articles 50 a , 50 b and 50 c of the Act 279 | regarding the prohibition of circumvention of technological measures do 280 | not apply to computer programs. 281 | 282 | ## Unprotected software and public domain software 283 | 284 | Only software that is original in the sense that it is an intellectual 285 | creation of the author is eligible for copyright protection. 286 | Non-original software, then, is not eligible for such protection and can 287 | be used freely from a copyright perspective.[^finland_11] 288 | 289 | There is no concept of public domain in the Finnish Copyright Act,[^finland_12] 290 | although based on the general principles of law, it can be concluded 291 | that it is possible for an author to grant a computer program into the 292 | public domain. However, this grant is possible only vis-à-vis the 293 | economic rights but not vis-à-vis the moral rights. Public domain 294 | computer programs are generally understood to mean such works to which 295 | the author has renounced all copyrights and which can therefore be 296 | freely used with the exception of moral rights.[^finland_13] 297 | 298 | Although there is some uncertainty as to what is required of a notice in 299 | order to fully place a program into the public domain, the authors of 300 | this chapter would deem such notices by the author as “This program is 301 | placed into the public domain” or “This program is in the public domain” 302 | to be sufficient under Finnish law. In this context, it is useful to 303 | observe the requirements in comparison to the assignment of copyright. 304 | In order for a copyright assignee to have the right to modify the work, 305 | such right must be agreed upon in the assignment contract (Article 28 of 306 | the Copyright Act). If placing a work into the public domain is compared 307 | with an assignment of copyright “to the public”, the question is whether 308 | the public domain notice must include a statement on modifications. Our 309 | conclusion is that there is no such requirement, since granting the 310 | right to modify a public domain work can be clearly seen as the 311 | intention of any author intending to place a computer program “into the 312 | public domain”. 313 | 314 | FOSS, however, is not considered as public domain software under Finnish 315 | law. This is simply because an author of FOSS reserves the copyright, 316 | whereas an author placing a work into the public domain renounces it 317 | altogether. 318 | 319 | ## Analysis of FOSS under Finnish law 320 | 321 | Under Finnish copyright law, FOSS licenses can be examined on a very 322 | general level as follows. 323 | 324 | Nothing else apart from the FOSS license can grant the user of the 325 | computer program the rights he or she needs in order to comply with 326 | copyright legislation. Therefore, the user needs the benefit of the 327 | copyright license grant, and that can only be achieved by fulfilling the 328 | license conditions. To the extent the license constitutes an agreement, 329 | the user will need to accept the conditions of such agreement. 330 | 331 | ### Copyrights 332 | 333 | Although FOSS can be authored by one person or owned by one legal 334 | entity, FOSS is often the result of the work of several authors. In such 335 | case, the crucial question is whether the later additions together with 336 | the original input form a jointly created work (Article 6 of the 337 | Copyright Act), or whether the original software is instead considered 338 | as the original work while every further contribution constitutes a 339 | derivative work (Article 4 of the Copyright Act). The legal consequences 340 | for these two cases are different. 341 | 342 | #### Qualification of FOSS 343 | 344 | A work that has been originally created by several parties is a jointly 345 | created work. In addition, any work in which the end result is such that 346 | the individual contributions cannot be separated from each other is a 347 | joint work. Contributions to a joint work can occur either 348 | simultaneously or successively.[^finland_14] 349 | 350 | FOSS can also consist of an original work and the modifications made to 351 | it. In such case, the end result is a derivative of the original work. 352 | 353 | In some cases, FOSS can constitute a collective work, i.e., a 354 | combination of several parties’ works. In this case, the author of the 355 | collective work is the person assembling and choosing the different 356 | works. Again, the permission of the author of the collective work is 357 | required for deciding on the license to the whole. 358 | 359 | Looking at the different legal scenarios in the light of FOSS 360 | development, it seems that many FOSS projects could be construed as 361 | partly jointly created works (e.g. the portions created jointly by the 362 | project), partly derivative works (e.g. the contributions received later 363 | on) and partly collective works (e.g. the third party FOSS components 364 | included in the project). 365 | 366 | The version control systems used in software development make it often 367 | easy to discern between contributions of different persons. Although 368 | this might make it possible to regard everything as derivative works, it 369 | is possible that jointly planned and executed computer programming would 370 | still be considered as creating a joint work, even if a version control 371 | system could be used to track every character addition to the code. 372 | 373 | #### Rights of the original co-authors 374 | 375 | In the case of a jointly created work, the copyright is held jointly, 376 | meaning that each author’s permission is required for the exploitation 377 | of the work. Regarding license choice, this means that a joint decision 378 | is needed on the downstream license. 379 | 380 | In case the joint authors have not agreed or are unable to agree upon 381 | the license, the work cannot be licensed at all. Here, the rules and 382 | principles regarding joint ownership are applied and, eventually, if no 383 | joint solution is found, the parties have the option to apply for a 384 | separation of the joint ownership. In such case, the end result could 385 | be, for example, that the work is auctioned. 386 | 387 | When starting a new project, a written upfront agreement between the 388 | most important contributors is recommended. In principle, an oral 389 | agreement could do just as well, but typically, the content of such 390 | agreement can turn out hard to prove. The written agreement should cover 391 | the nature of the project, the roles of the parties, the copyright 392 | notices used, the downstream license applied as well as the procedures 393 | for decision making and amending the agreement. Each author of a jointly 394 | created work has the right to present claims on the basis of copyright 395 | infringement, so no joint decision is necessarily required for 396 | enforcement. 397 | 398 | #### Authors of derivative works 399 | 400 | Most FOSS projects will include derivative works. Even every 401 | contribution can perhaps be considered as a derivative work. In this 402 | case, the copyright to the original work is held by the original author, 403 | whereas the copyright to the modifications is held by the subsequent 404 | author. These copyrights are – when separated – independent and full 405 | copyrights, but the derivative work cannot be distributed without the 406 | consent of both authors. 407 | 408 | The combination of the original work and the modifications can be used 409 | only by the permission of both the original author and the subsequent 410 | author. Thus, the downstream license to the whole will need to be agreed 411 | upon together. 412 | 413 | Again, a written upfront agreement is recommended between the major 414 | contributors starting the project. 415 | 416 | In the case of derivative works, as well, enforcement by the authors can 417 | occur separately. Each author is, however, able to enforce their rights 418 | only in relation to the part in which they hold the copyright. 419 | 420 | ### The assignment of copyrights 421 | 422 | In order to control the project in an organised manner, it may be useful 423 | to collect all copyrights concerning a FOSS project within one 424 | organisation (i.e. a legal entity). The existence of such organisation 425 | will simplify the management and enforcement of the joint rights.[^finland_15] 426 | The assignment of copyright is perfectly possible under Finnish law as 427 | long as the legal requirements have been fulfilled.[^finland_16] Assignment can 428 | also be carried out by way of a fiduciary assignment of copyrights. A 429 | fiduciary assignment means that the party to whom the copyrights are 430 | assigned shall not act for himself but on account of others who have 431 | transferred the rights (i.e. the original authors). A fiduciary 432 | assignment would resemble an ordinary assignment added, however, with 433 | contractual conditions concerning the roles, rights and responsibilities 434 | of the fiduciary and the original authors. 435 | 436 | ### Moral rights 437 | 438 | As described earlier (see under 439 | [section\_title](#sec_finland_moral_rights) and 440 | [section\_title](#sec_finland_copyright_assignment)), moral rights 441 | cannot be assigned under Finnish law, nor can they be fully waived. 442 | However, they have less importance with regard to computer programs. 443 | 444 | In Finland, it is generally considered that good practice in the 445 | software industry does not require the employer to state the names of 446 | the employee authors (or contractor personnel) in connection with the 447 | dissemination of a computer program. However, this does not necessarily 448 | apply to FOSS, since (i) the authors have not assigned their copyrights 449 | to the third parties disseminating the program, (ii) the authors have 450 | not received salary or any another form of compensation from the third 451 | party, and (iii) the authors are often keen to receive acknowledgement 452 | of and respect for the use of their works. 453 | 454 | Moral rights apply equally to FOSS regardless of whether it has been 455 | created as a derivative work, joint work or otherwise. Each relevant 456 | author has his or her moral rights. 457 | 458 | ### Enforcing FOSS licenses 459 | 460 | In general, FOSS licenses can be deemed fully enforceable under Finnish 461 | law. There is no existing case law on FOSS licenses, but it is clear 462 | that nothing apart from the license can grant a third party distributor 463 | the right to distribute the FOSS. Also, there are no formal requirements 464 | for granting licenses. FOSS licenses are therefore enforceable. 465 | 466 | However, it may be difficult to clearly associate a computer program 467 | with a license. The project may have done their homework poorly, and the 468 | license is not adequately communicated to the users, or there are 469 | discrepancies in the information given. License attachment clauses may 470 | be unclear. This may lead to questions of, and needs for, additional 471 | interpretation. Also, individual licenses may have wordings subject to 472 | interpretation, and some elements of a license may not be enforceable at 473 | all, or the license may be interpreted differently from what was assumed 474 | by the project. These uncertainties do not mean that FOSS licenses are 475 | unenforceable, per se, but the end result of the enforcement might not 476 | always be satisfactory due to unclarity in licensing and license 477 | attachment. 478 | 479 | There has been very little discussion in Finland on whether a computer 480 | program license is (i) an agreement between the copyright holder and the 481 | user including copyright permissions grants or (ii) a unilateral 482 | permission by the copyright holder. In both cases, the document will 483 | need to grant the copyright permissions. With regard to the available 484 | measures of execution, copyright-related execution measures would apply 485 | in both cases. Contract-related execution measures would be applicable 486 | in the contract-based situation and probably in the unilateral 487 | permission situation, as well. In fact, there is little or no difference 488 | between these legal concepts. 489 | 490 | Violation of a license condition would normally classify as a copyright 491 | infringement. A FOSS license cannot be deemed solely as a transfer of a 492 | copy of a work, and therefore, any types of conditions contained in a 493 | license – depending on the wording of the license – can be considered as 494 | prerequisites for the copyright grant. Not observing the conditions 495 | could be construed as losing the copyright grant and therefore resulting 496 | in a copyright violation and not a mere contract violation. 497 | 498 | ### Waiver and liability 499 | 500 | Typically, FOSS licenses contain very strong liability limitation 501 | clauses which discharge the author from all liability. Most clauses 502 | discharge all liability for quality faults in the software and many 503 | clauses discharge liability for issues in the title to the FOSS, as 504 | well. The reason for this is that FOSS is mostly made available without 505 | a fee, and as a result, the author generates insufficient income to pay 506 | for liability insurances and legal costs.[^finland_17] 507 | 508 | Where business models are built around FOSS, guarantees are often 509 | offered against a fee or as a part of chargeable services. 510 | 511 | There is no general requirement to offer warranties in (i) business to 512 | business, (ii) individual to business, or (iii) individual to individual 513 | relations. FOSS liability limitations can thus be considered valid. The 514 | reasonableness of such provisions can be contested only on very rare 515 | occasions. Since FOSS is mostly licensed without a fee, the 516 | circumstances would have to be very exceptional in order for the claim 517 | to be able to succeed on grounds of the provision being an unreasonable 518 | contract term. 519 | 520 | However, in a relationship between a business and an individual using 521 | the product as a consumer, there are requirements as to different types 522 | of faults in the product. These requirements apply to consumer products 523 | but not to consumer services. Although computer software can be 524 | considered as a consumer product in some cases (typically in 525 | off-the-shelf proprietary software sales), this would not normally apply 526 | to FOSS. In any case, since FOSS is normally not sold for a fee, and 527 | even proprietary off-the-shelf copies often include full liability 528 | limitations, the risk in that a liability limitation of a FOSS license 529 | were to be deemed contrary to law or unreasonable can be seen as low. 530 | 531 | The variance of licensing regimes does not affect the above analysis. 532 | Product liability rules are generic and do not specifically react to 533 | particular software licensing regimes. 534 | 535 | ### The copyleft principle 536 | 537 | #### Principle 538 | 539 | A characteristic found in different (but not all[^finland_18]) FOSS licenses is 540 | the so-called “copyleft” principle. FOSS licenses incorporating the 541 | copyleft principle[^finland_19] lay down as a license provision that in order 542 | for the licensee to be entitled to further distribute the program with 543 | his or her modifications, such modifications must be licensed under the 544 | same terms as the original program. The extent of “modifications” 545 | subject to the copyleft rule varies from license to license. In some 546 | licenses only direct modifications of the files are considered 547 | modifications, whereas in others any creation of a derivative work is 548 | subject to the copyleft rule. 549 | 550 | The copyleft principle may – depending on the case – restrict the 551 | commercial uses of the software. Sometimes it is feared that copyleft 552 | software could unintentionally cause the company’s copyrighted works to 553 | become subject to a copyleft license. This is a misconception. The 554 | sanctions for incorporating copyleft code in an unpermitted manner into 555 | proprietary software are the same copyright law sanctions resulting from 556 | unpermitted use of any copyrighted work. 557 | 558 | #### Validity 559 | 560 | As discussed above, copyleft clauses are as valid as any other clauses 561 | in copyright licenses. Some copyleft clauses, however, are unclear or 562 | ambiguous (notably in GPL version 2, especially regarding the question 563 | of the extent of copyleft) and may therefore become subject to 564 | interpretation. 565 | 566 | ### Compensations and damages 567 | 568 | Copyright violations entitle the copyright holders to claim for 569 | copyright-based compensation as well as damages. Copyright-based 570 | compensation is typically set to a level equal to the license fee 571 | charged for the infringing act had the license been lawfully acquired. 572 | Damage, in turn, includes any damage occurring due to the infringement, 573 | e.g., costs due to specialist work for inspecting the infringing acts. 574 | In addition, legal and other costs are compensated, fully in principle, 575 | but in practice only to a certain extent. 576 | 577 | In the context of FOSS, the proper amount of copyright-based 578 | compensation can be difficult to establish. If FOSS has been distributed 579 | against the copyleft rule, the compensation would, in principle, be 580 | equal to the license price the copyright holder would ask for such 581 | distribution. 582 | 583 | ## FOSS cases in Finland 584 | 585 | No cases have been reported yet (November 2013). 586 | 587 | ## Finnish case law on copyright to computer programs 588 | 589 | The authors have followed and listed below Finnish case law relating to 590 | copyright protection of computer programs up until November 2013. With 591 | respect to precedents by the Supreme Court and opinions issued by the 592 | Copyright Council, we believe the list is complete and exhaustive. 593 | However, with regard to Appeal Court level case law, as well as 594 | judgments apart from Supreme Court precedents, we have not been able to 595 | perform exhaustive searches for such material. The decisions are in 596 | Finnish with Swedish translations available for the Supreme Court 597 | precedents. 598 | 599 | ### Supreme Court 600 | 601 | - KKO:1996:43 602 | 603 | - KKO 2788/1997 (non-precedent) 604 | 605 | - KKO:1998:91 606 | 607 | - KKO:1999:115 608 | 609 | - KKO:2000:68 610 | 611 | - KKO:2003:88 612 | 613 | - KKO:2008:45 614 | 615 | ### Appeal courts 616 | 617 | - Appeal Court of Helsinki (Helsingin HO) 28.12.1999 3571 618 | 619 | - Appeal Court of Kouvola (Kouvolan HO) 31.10.2000 1064 620 | 621 | - Appeal Court of Helsinki (Helsingin HO) 08.06.2004 2133 622 | 623 | - Appeal Court of Vaasa (Vaasan HO) 17.5.2005 712. (The prosecutor 624 | obtained, and the Court concurred with, a Copyright Council opinion 625 | on copyright threshold in the matter, see TN 2003:10 below.) 626 | 627 | - Appeal Court of Helsinki (Helsingin HO) 20.06.2006 1891 (The 628 | plaintiff presented as evidence, and the Court concurred with, a 629 | Copyright Council opinion on the copyright threshold of a computer 630 | program, see TN 1997:2 below. Case decided by Supreme Court, see 631 | KKO:2008:45 above.) 632 | 633 | - Appeal Court of Turku (Turun HO) 17.02.2009 304 634 | 635 | - Appeal Court of Helsinki (Helsingin HO) 20.12.2010 3371 636 | 637 | - Appeal Court of Rovaniemi (Rovaniemen HO) 04.03.2011 204 638 | 639 | ### Copyright Council 640 | 641 | Opinions of the Copyright Council[^finland_20] (in Finnish) can be accessed via 642 | the following website: 643 | 644 | 645 | 646 | 647 | 648 | 649 | 650 | 651 | 652 | 653 | 654 | 655 | 656 | 657 | 658 | 659 | 660 | 661 | 662 | 663 | 664 | 665 | 666 | 667 | 668 | 669 | 670 | 671 | 672 | 673 | 674 | 675 | 676 | 677 | 678 | 679 | 680 | 681 | 682 | 683 | 684 | 685 | 686 | 687 | 688 | 689 | 690 | 691 | 692 | 693 | 694 | 695 | 696 | 697 | 698 | 699 | 700 | 701 | 702 | 703 | 704 | 705 | 706 | 707 | 708 | 709 | 710 | 711 | 712 | 713 | 714 | 715 | 716 | 717 | 718 | 719 | 720 | 721 | 722 | 723 | 724 | 725 | 726 | 727 | 728 | 729 | 730 | 731 | 732 | 733 | 734 | 735 | 736 | 737 | 738 | 739 | 740 | 741 | 742 |
Decision no.Rubric (translated from Finnish)

TN 1986:3

Object of protection

TN 1989:7

Copyright to computer program

TN 1992:3

Copyright protection of video games

TN 1993:12

Copyright to computer program

TN 1996:3

Copyright of an author of a computer program

TN 1997:12

Copyright to computer program

TN 1997:17

Exhaustion of copyright (etc.)

TN 1997:18

Computer program for calculating preset values of radiator valves

TN 1998:13

Paternity right of an author of a computer program

TN 1998:16

Copyright to computer programs

TN 1998:19

Copyright to translations included in a computer program

TN 1999:4

Right of a civilian service man to a computer program created by him

TN 2003:10

Copyright to computer programs

TN 2005:7

Copyright threshold and protection of a computer program

TN 2006:5

Protection of a computer program

TN 2006:12

Copyright threshold and protection of a computer program

TN 2007:3

Copyright to a computer program created as (part of) a thesis

TN 2007:9

Circumvention of an effective technological measure*

TN 2008:13

Copyright to a musical application

TN 2009:15

Renting of a computer program

TN 2011:15

Copyright to an internet game and the idea thereof

743 | 744 | `*` English translation available at 745 | 746 | 747 | ## References and recommended literature 748 | 749 | There are no wider literature presentations on Finnish copyright 750 | legislation in English. The references here are to literature on 751 | copyright in Finnish or Swedish, with a special emphasis on literature 752 | touching upon issues related to computer programs. 753 | 754 | ### Books 755 | 756 | - Haarmann, Pirkko-Liisa: Tekijänoikeus ja lähioikeudet. Talentum. 757 | Helsinki 2005. 758 | 759 | - Harenko, Kristiina – Niiranen, Valtteri – Tarkela, Pekka: 760 | Tekijänoikeus – kommentaari ja käsikirja. WSOYpro. Helsinki 2006. 761 | 762 | - Sorvari, Katariina: Vastuu tekijänoikeuden loukkauksesta 763 | erityisesti tietoverkkoympäristössä. WSOY. Vantaa 2005. 764 | 765 | - Takki, Pekka: IT-sopimukset – käytännön käsikirja. Kauppakaari. 766 | Helsinki 2003. 767 | 768 | - Välimäki, Mikko: Oikeudet tietokoneohjelmiin. Talentum. 769 | Helsinki 2009. 770 | 771 | ### Articles 772 | 773 | - Lehtonen, Asko: Kohtuullisen hyvityksen arviointi tietokoneohjelmaa 774 | koskevassa tekijänoikeuden loukkaustapauksessa. In (ed. Anne 775 | Kumpula): *Juhlajulkaisu Leena Kartio*. University of Turku 1998. 776 | 777 | - Pitkänen, Olli: Oikeudet tietokoneohjelmistoihin. In (ed. Eero 778 | Hyvönen): *Ohjelmistoliiketoiminta*. WSOY 2003. 779 | 780 | - Vedenkangas, Matti: Tietokoneohjelman luovutuksen luonne: 781 | tekijänoikeuden, käyttöoikeuden vaiko teoskappaleen luovutus. 782 | Defensor Legis 5/2002. 783 | 784 | - Oesch, Rainer – Vesala Juha: Ohjelmistolisenssit ja 785 | tekijänoikeuden raukeaminen. Defensor Legis 2/2004. 786 | 787 | [^finland_bio1]: *Henri Tanskanen is an Associate at HH Partners, Attorneys-at-law Ltd., with a background 788 | in corporate open source compliance work. He also works as an Open 789 | Source Specialist for Validos ry, an association providing sharing and 790 | production of open source compliance information to its 791 | corporate members. 792 | * 793 | 794 | [^finland_bio2]: *Martin von Willebrand is the Head of Technology and Partner at HH Partners, 795 | Attorneys-at-law, Ltd. He is the chairman of Validos ry, an association 796 | providing sharing and production of open source compliance information 797 | to its corporate members, including for example Fujitsu Finland, 798 | Vaisala, Cargotec, Cassidian Finland and Tieto. He is a board and 799 | steering group member of COSS – The Finnish Centre for Open Systems 800 | and Solutions. He has widely received recommendations for his work 801 | mainly in the technology field from publications such as Legal 500, 802 | Chambers Europe and Who’s Who Legal. His clients in the free software 803 | field include, in addition to many businesses such as Ixonos Oyj, Free 804 | Software Foundation Europe, the Ministry of Environment of Finland, 805 | Validos and Aalto University. 806 | * 807 | 808 | [^finland_1]: Official Finnish version: 809 | . Official 810 | Swedish version 811 | and the 812 | unofficial translation to English 813 | . Links 814 | retrieved on 8 November 2013. 815 | 816 | [^finland_2]: The first of the amendments was enacted prior to the Directive, as 817 | many principles of the Directive were already anticipated at the 818 | time. The original paragraphs enacted then have thereafter been 819 | modified and replaced in subsequent amendments. 820 | 821 | [^finland_3]: Article 1, paragraph 3 of the Computer Programs Directive 822 | (91/250/EEC). 823 | 824 | [^finland_4]: See Haarmann 2005, pages 62 and 74. This interpretation, however, 825 | is not supported by the preparatory works to the Copyright Act which 826 | indicate that the same criteria of originality should be applied to 827 | computer programs and other works protected under the Act (HE 828 | 211/1992, p. 3). 829 | 830 | [^finland_5]: Preparatory works HE 161/90 (Government Proposal for amending the 831 | Copyright Act) and KM 1987:8 (Report of the Copyright Committee); 832 | for decisions by the Copyright Council, see the following footnote. 833 | 834 | [^finland_6]: There are no Supreme Court prejudicates where the Court would have 835 | assessed a particular computer program’s eligibility for copyright 836 | protection or discussed the matter in detail. However, this question 837 | is discussed in two decisions by the Appeal Court of Helsinki, 838 | issued on 28 December 1999 (R 99/661) and 20 June 2006 (S 04/1824), 839 | as well as a decision by the Appeal Court of Turku, issued on 9 840 | February 1988. In addition to the above, this question has been 841 | covered in several decisions of the Copyright Council (see, e.g., TN 842 | 1989:7, TN 1996:3, 1997:12, TN 1997:18, TN 2005:7, TN 2008:13 and TN 843 | 2011:15). 844 | 845 | [^finland_7]: See preparatory works Government Proposal HE 161/90, under Article 846 | 40 b of the detailed argumentation. 847 | 848 | [^finland_8]: These arguments have been presented in the preparatory works of 849 | Article 40 b (Government Proposal HE 161/90), under specific 850 | argumentation on the Article. 851 | 852 | [^finland_9]: This is a logical conclusion based on the wording of Article 4 of 853 | the Act. The same result is presented by Haarmann (2005), page 245. 854 | 855 | [^finland_10]: This has been described in more detail under 856 | [section\_title](#sec_finland_AuthorsBeneficiaries). 857 | 858 | [^finland_11]: The legal criteria and case-law on the threshold of copyright 859 | protection for computer programs has been presented in more detail 860 | above under [section\_title](#sec_finland_copyrightact). 861 | 862 | [^finland_12]: Article 9 of the Copyright Act lists works that are not subject 863 | to copyright protection, such as Acts and Decrees, and can therefore 864 | be considered to be in the public domain. However, this is not an 865 | acknowledgment of the concept of granting a work into the public 866 | domain as decided by the author. 867 | 868 | [^finland_13]: For discussion on the content of moral rights, see under 869 | [section\_title](#sec_finland_moral_rights). 870 | 871 | [^finland_14]: Haarmann 2005, page 104. 872 | 873 | [^finland_15]: FSFE (Free Software Foundation Europe) recommends that developers 874 | of Free Software projects use its Fiduciary License Agreement (FLA) 875 | to assign their rights to a fiduciary (preferably the FSFE). For an 876 | analysis of the FLA under Belgian law, see Y., VAN DEN BRANDE, “The 877 | Fiduciary Licence Agreement: Appointing legal guardians for Free 878 | Software Projects”, IFOSS L. Rev., Vol 1, Issue 1, p. 9. 879 | 880 | [^finland_16]: This has been discussed earlier under 881 | [section\_title](#sec_finland_copyright_assignment). 882 | 883 | [^finland_17]: B. PERENS, “The Open Source Definition”, *Open Sources: Voices 884 | from the Open Source Revolution*, . 885 | 886 | [^finland_18]: Nor the principles (freedoms) of the Free Software movement, nor 887 | the Open Source Definition mandate the use of a copyleft clause. 888 | Several FOSS licenses do not contain a copyleft clause at all, such 889 | as the Berkeley Software Distribution (BSD) license or the Apache 890 | license. 891 | 892 | [^finland_19]: E.g., GPL version 3 Art. 5 stipulates: “You must license the 893 | entire work, as a whole, under this License to anyone who comes into 894 | possession of a copy. This License will therefore apply, along with 895 | any applicable section 7 additional terms, to the whole of the work, 896 | and all its parts, regardless of how they are packaged. This License 897 | gives no permission to license the work in any other way, but it 898 | does not invalidate such permission if you have *separately* 899 | received it.” GPL version 2 Art. 2 b stipulates: “You must cause any 900 | work that you distribute or publish, that in whole or in part 901 | contains or is derived from the Program or any part thereof, to be 902 | licensed as a whole at no charge to all third parties under the 903 | terms of this License.” 904 | 905 | [^finland_20]: The Copyright Council is a government-appointed council which 906 | issues judicially non-binding opinions on the application of the 907 | Copyright Act. The Council is mainly composed of representatives of 908 | major right holders and users of copyright-protected works, while 909 | the chair, vice-chair and at least one member of the Council are 910 | impartial appointees. Opinions of the Copyright Council can be 911 | requested by any person or entity whether or not they have personal 912 | interests in the matter. It is not uncommon that a party to a civil 913 | or criminal procedure requests an opinion from the Council regarding 914 | a copyright-related question. 915 | 916 | -------------------------------------------------------------------------------- /src/50-Israel.markdown: -------------------------------------------------------------------------------- 1 | # Israel 2 | 3 | *Eli Greenbaum[^israel_bio]* 4 | 5 | ## Introduction to software protection under Israeli law 6 | 7 | ### Body of law 8 | 9 | The Israeli Copyright Law of 2007 (the “Copyright Law”) modernized the 10 | protection of intellectual property in Israel. The Copyright Law 11 | replaced the prior outdated statutory framework, which consisted of both 12 | the Copyright Ordinance of 1924 and the British Copyright Act of 1911, 13 | the latter having been made applicable to the British Mandate in 1924 14 | and adopted by the nascent State of Israel in 1948.[^israel_1] The Copyright 15 | Law expressly provides for the copyright protection of computer 16 | programs. 17 | 18 | A full analysis of the patent license provisions incorporated in many 19 | free and open source software (“FOSS”) licenses is beyond the scope of 20 | this chapter. However, it should be noted that it is possible, in 21 | certain circumstances, to protect software under Israeli patent law. On 22 | March 15, 2012, the Israeli Patent Authority issued new guidelines 23 | regarding the patentability of software inventions in Israel. The new 24 | guidelines adopt a relatively liberal approach regarding the patent 25 | eligibility of software inventions. 26 | 27 | ### Copyright Act: Object of protection 28 | 29 | The Copyright Law expressly provides that computer programs, which are 30 | categorized as literary works, constitute copyrightable subject matter. 31 | The Copyright Law also provides that a computer program includes the 32 | program “in any form that it may be expressed”. This provision is 33 | intended to be consistent with the definition of computer programs in 34 | Article 4 of the WIPO Copyright Treaty.[^israel_2] 35 | 36 | ### Authors/Copyright owners 37 | 38 | Section 34 of the Copyright Law provides that, absent an agreement to 39 | the contrary, an employer shall be the owner of the copyright of a work 40 | that was created by an employee “for the purpose and in the course” of 41 | such employee’s work. As there may be circumstances where it is not 42 | clear whether an employment relationship exists, or whether the work was 43 | created “for the purpose and in the course of” employment within the 44 | meaning of the statute, employment agreements in Israel frequently 45 | contain express provisions to clarify the ownership of created works, as 46 | well as affirmative assignments of rights. The Copyright Law takes a 47 | different tack with respect to works for hire. Section 35(a) of the 48 | Copyright Law provides that in the absence of an "express or implied 49 | agreement" to the contrary, the default rule is that the creator of a 50 | work, and not the party that commissioned the work, will be the original 51 | owner of the copyright in a commissioned work. However, as that 52 | provision allows an "implied" agreement to determine copyright 53 | ownership, the default rule is less than clear. As such, it is 54 | recommended that consulting agreements or other “work for hire” 55 | arrangements in Israel include an express grant of the copyright to the 56 | commissioning entity, if that is the intention of the parties. 57 | 58 | ### Compilations 59 | 60 | The Copyright Law also protects compilations as literary works. Section 61 | 4(b) of the Copyright Law provides that the original expression 62 | protected in a compilation is the originality of selection or 63 | arrangement of individual works or material in the compilation. 64 | 65 | ### Joint works 66 | 67 | The Copyright Law recognizes the possibility of joint works but does not 68 | expressly provide for the manner in which joint owners in a copyright 69 | may exploit the work. Case law has not provided a clear determination of 70 | whether Israeli law should generally follow the rule in the United 71 | Kingdom — such that the consent of all joint owners would be required to 72 | license a work — or whether it should generally follow the rule in the 73 | United States — such that each joint owner should be able to license the 74 | work without consent of the other joint owners, subject to a duty of 75 | accounting.[^israel_3] As such, the right of joint owners to exploit a 76 | jointly-owned work, including the right to grant licenses to third 77 | parties or to individually enforce the copyright, is at present unclear 78 | under Israeli law. 79 | 80 | Section 54(b) of the Copyright Law requires that a plaintiff in a 81 | copyright infringement suit join all other right holders in the suit. 82 | This would seem to require that all joint owners of a copyright be 83 | joined in any action to enforce a copyright. 84 | 85 | ### Derivative works 86 | 87 | Section 16 of the Copyright Law defines a “derivative work” as an 88 | original work that is “materially based” on another work. While not 89 | expressly set forth in the statute, the copyright of the author of the 90 | derivative work should extend only to the original elements of the 91 | derivative work, while the rights of the copyright holder of the 92 | original work should remain intact.[^israel_4] As noted below, subject to 93 | certain statutory exceptions, the right to create a derivative work is 94 | one of the exclusive economic rights included in a copyright. 95 | 96 | The question of what constitutes a “derivative work” is, of course, of 97 | primary importance in the interpretation of the GPL, which (in very 98 | brief summary) may potentially require the disclosure of the source code 99 | of works that are derivative of the licensed work. To the extent the 100 | statutory definition of a “derivative work” impacts the answer to that 101 | question,[^israel_5] it should be noted that the statutory test of the 102 | Copyright Law looks to the “materiality” of the “use” that the 103 | subsequent work makes of the protected work. This test may subtly differ 104 | from the definition of a “derivative work” in other jurisdictions that 105 | look to the substance of the protected work that is incorporated in the 106 | potentially derivative work, rather than how the potentially derivative 107 | work uses that material. 108 | 109 | ### Exclusive rights 110 | 111 | Section 11 of the Copyright Law sets forth the exclusive economic rights 112 | afforded under a copyright. All of the rights apply in the case of a 113 | computer program. The rights include: 114 | 115 | (a) The right to copy the work; 116 | 117 | (b) The right to publish the work, if the work has not yet been 118 | published; 119 | 120 | (c) The right to publicly perform the work; 121 | 122 | (d) The right to broadcast the work; 123 | 124 | (e) The right to make the work available to the public; 125 | 126 | (f) The right to create and a exploit derivative works; and 127 | 128 | (g) The right to lease the work. 129 | 130 | Several other provisions of the Copyright Law are relevant to the 131 | interpretation of these enumerated exclusive rights in the context of 132 | computer programs. Section 12 of the Copyright Law provides that 133 | technological and electronic storage of a work, as well as “temporary” 134 | copying of a work, will also be deemed copying for purposes of the law. 135 | These provisions bear on the possibility of infringing a copyright by 136 | running a computer program or by accessing data over the internet. 137 | However, Section 26 of the Copyright Law limits the exclusive right of 138 | “temporary” copying to certain purposes and to the extent the copy 139 | itself has significant economic value. 140 | 141 | In addition, section 11(7) of the Copyright Law expressly provides that 142 | the “right to lease the work” applies to computer programs. Section 17 143 | of the Copyright Law limits this right to the lease of physical copies 144 | of the work for commercial purposes, and provides that the right does 145 | not include the exclusive right to lease computer programs or recordings 146 | that are inseparable from the item that is the primary object of the 147 | lease. As such, the exclusive right to lease a copy of a computer 148 | program is not infringed by the lease of consumer goods that include 149 | software.[^israel_6] 150 | 151 | ### Exceptions to exclusive rights 152 | 153 | The Copyright Law provides for certain “permitted uses” which constitute 154 | exclusions to the exclusive rights of copyright holder enumerated above. 155 | These include, as described in more detail below, the right to create 156 | copies or derivative works of computer programs for the purpose of 157 | backups, maintenance and support, fixing bugs, and ensuring 158 | interoperability.[^israel_7] These “permitted uses” may be exercised only by 159 | the holder of a “lawful copy” of the program or on her behalf. 160 | 161 | Section 24(a) of the Copyright Law provides for a right to create backup 162 | copies. It states that that the holder of a lawful copy of a computer 163 | program may create additional copies of such program for backup 164 | purposes. Such copies, however, must be destroyed once the need for them 165 | passes. 166 | 167 | Section 24(b) of the Copyright Law provides that that the holder of a 168 | lawful copy of a computer program may copy such program, either for the 169 | purpose of maintenance of such program or for the purpose of maintenance 170 | of a computer system, if such maintenance is required to use such 171 | program. Such use is also permitted for the purpose of providing such 172 | maintenance to the holder of a lawful copy. 173 | 174 | Section 24(c) of the Copyright Law allows for creating both copies and 175 | derivative works of computer programs for the purpose of fixing bugs, 176 | interoperability and information security. Without repeating verbatim 177 | the detailed conditions set forth in this section, it should be noted 178 | that this section is broadly intended to allow reverse engineering and 179 | decompilation of computer programs for the enumerated purposes.[^israel_8] It 180 | is not clear whether a licensee may contractually agree to forgo the 181 | rights of “permitted uses” set forth in this section. As such, the 182 | enforceability of common contractual terms against reverse engineering 183 | is at present unclear under Israeli law. 184 | 185 | ### Moral rights 186 | 187 | Section 45(a) of the Copyright Law expressly provides that moral rights 188 | do not exist in computer programs. 189 | 190 | ### Terms of protection 191 | 192 | The term of protection for computer programs is the same as for other 193 | works. Section 38 of the Copyright Law provides that copyright 194 | protection in a work is for the life of the author plus 70 years, 195 | regardless of whether the author owns the copyright. Section 39 of the 196 | Copyright Law provides that in a joint work, the term of copyright 197 | protection is for 70 years following the death of the last joint author. 198 | However, the term of protection for works that were originally published 199 | in a country outside of Israel is generally limited to the term of 200 | protection afforded by that country. 201 | 202 | ### Copyright assignment 203 | 204 | Except in the context of the employer-employee relationship, the 205 | transfer of a copyright (or the exclusive license in respect thereof) 206 | requires a written assignment. In contrast to the prior law, the 207 | Copyright Law does not require that such writing be signed by the 208 | parties, which raises the possibility that unsigned messages (such as 209 | emails) may be sufficient to effect an assignment of a copyright. 210 | 211 | ### Enforcement 212 | 213 | The Copyright Law sets forth both civil and criminal penalties for the 214 | infringement of copyrights. Civil penalties, as described in more detail 215 | below under the heading “Legal Remedies”, can include claims for an 216 | accounting of profits, actual damages or statutory damages. Criminal 217 | sanctions can include imprisonment and the imposition of a statutory 218 | fine, and generally can be imposed for infringement for the purpose of 219 | commerce, or the sale, lease or distribution of infringing work in 220 | commerce. 221 | 222 | The Copyright Law also imposes a special duty on the office holders in a 223 | corporation. Section 63 of the Copyright Law provides that office 224 | holders must supervise employees in order to ensure that such employees 225 | do not commit acts of infringement. Section 63(b) of the Copyright Law 226 | sets forth a presumption that an office holder has not fulfilled his 227 | statutory duty of supervision if any such acts of infringement are 228 | committed. Statutory fines can be imposed on such office holders that do 229 | not satisfy their duty of supervision. 230 | 231 | ### Technical devices and effective technological measures 232 | 233 | The Copyright Law does not contain provisions regarding the 234 | circumvention of technological measures implementing digital rights 235 | management. This reflects the deliberate decision of the Israeli 236 | parliament (the Knesset) not to include such provisions in the law. In 237 | 5097/11 Telran Communications (1986) Ltd. v Charlton Ltd., the Supreme 238 | Court confirmed that the Copyright Law should not be interpreted as 239 | prohibiting the circumvention of technological measures implementing 240 | digital rights management. 241 | 242 | It is possible, however, that the circumvention of effective 243 | technological measures may present a criminal violation of the Computer 244 | Law of 1995 (the “Computer Law”). Sections 2 and 7 of the Computer Law 245 | prohibit the unauthorized disruption of the proper operation of a 246 | computer system, or the unauthorized erasure, change or disruption of 247 | material on the computer system. It is unclear whether the circumvention 248 | of effective technological measures falls within the ambit of these 249 | provisions, especially considering the Knesset’s deliberate decision not 250 | to include express provisions regarding this issue in the Copyright Law. 251 | 252 | ## Analysis of FOSS under Israeli law 253 | 254 | Under Israeli law, rights in FOSS do not differ from other forms of 255 | copyright and patent licensing. FOSS is protected under the Copyright 256 | Law as with any other form of software, and there is no reason to 257 | believe that FOSS licenses would not constitute enforceable legal 258 | contracts. As such, a breach of a FOSS license would be viewed as a 259 | breach of a contract, and the use of FOSS in breach of a license is 260 | likely to constitute copyright infringement. 261 | 262 | For example, recently the Jerusalem District Court in TA 3560/09 and TA 263 | 3561/09, Reuveni v. Mapa Publishing, Ltd. enforced the terms of the 264 | Creative Common BY-NC-ND license against a commercial defendant. The 265 | plaintiffs, amateur photographers, had uploaded photographs to the 266 | Internet pursuant to that license. The defendant, a commercial 267 | publisher, published the pictures both in a book for commercial sale as 268 | well as on its website, violating the terms of the Creative Commons 269 | license. The Court found that, in violating the license, the defendant 270 | had infringed the plaintiffs' copyright and ordered the defendant to pay 271 | monetary damages. The case presents an important precedent which shows 272 | that Israeli courts are willing to enforce the terms of open source 273 | licenses against commercial defendants. Several questions raised by the 274 | decision, including the issues of the contractual validity of a FOSS 275 | licenses and how damages should be calculated in an action for 276 | infringement of FOSS, are discussed in more detail below. 277 | 278 | ### Rights of the original co-authors 279 | 280 | FOSS is often developed within a collaborative development model. As 281 | noted above, while the Copyright Law recognizes the possibility of joint 282 | authors, it does not specifically set out the rights afforded to each of 283 | the joint owners. This increases the importance under Israeli law of 284 | ensuring that contributors to open source projects have executed 285 | contribution agreements, in which they either assign or license their 286 | contributed code to such project. 287 | 288 | ### Authors of modifications 289 | 290 | Successive versions of FOSS may build upon the works of previous FOSS 291 | authors. As in many other legal systems, Israeli law recognizes the 292 | copyright of successive authors in the derivative work. This copyright 293 | in the derivative work should be subject to the copyright of the 294 | original author to the original work. 295 | 296 | ### Validity of FOSS licenses 297 | 298 | The Contract Law of 1973 (the “Contract Law”) provides that under 299 | Israeli law contracts are formed through a process of offer and 300 | acceptance. The statute details how this requirement of offer and 301 | acceptance can be satisfied. In addition, case law has generally 302 | emphasized the substance of contract law rather than the form and, as 303 | such, Israeli law puts a strong emphasis on questions of good faith and 304 | fair dealing between the parties.[^israel_9] 305 | 306 | Commercial license agreements generally satisfy the statutory 307 | requirements of contract formation, in that they are often reached 308 | through express acceptance of the terms of the license following a 309 | process of negotiation. FOSS licenses that are reached through this 310 | standard process of offer and acceptance should also be seen as validly 311 | formed and should be enforced as regular contracts. In practice, 312 | however, the acceptance of a FOSS license will frequently not involve 313 | such a process of offer and acceptance.[^israel_10] Often a FOSS license does 314 | not provide for an express agreement between the parties, but merely 315 | sets forth conditions that a licensee is required to satisfy in order to 316 | benefit from the protection of the license.[^israel_11] For example, FOSS code 317 | is often made available through the Internet with the minimal statement 318 | that it is being made available pursuant to a specific FOSS license. 319 | Even so, Israeli contract law is likely to recognize FOSS licenses as 320 | validly formed legal contracts. First, Section 6 of the Contract Law 321 | expressly recognizes that contracts may be accepted through a manner of 322 | conduct. In addition, the Standardized Contract Law of 1982 (the 323 | “Standardized Contract Law”) generally recognizes the contractual 324 | validity of “standardized contracts” that may be either accepted or 325 | rejected by a counterparty.[^israel_12] This conclusion is likely to be 326 | bolstered by the general emphasis of Israeli law with regard to good 327 | faith and fair dealing, since the FOSS license will be the only grant of 328 | permission to use the FOSS work.[^israel_13] 329 | 330 | The plaintiffs in Reuveni (the case referenced above) did seem to 331 | advance contractual claims when they asserted that the defendants did 332 | not satisfy the conditions set forth in the Creative Commons 333 | license.[^israel_14] The court, however, did not consider the question of 334 | whether the Creative Commons constituted an enforceable legal contract 335 | and proceeded directly to the issues of copyright infringement and 336 | damages. As such, the Reuveni decision leaves open the question of 337 | whether FOSS licenses constitute enforceable legal contracts. 338 | 339 | The Contract Law does not incorporate a requirement of consideration. As 340 | such, questions that may arise in other jurisdictions regarding the 341 | consideration received by the licensor in a FOSS context do not arise 342 | under Israeli law. 343 | 344 | ### Termination 345 | 346 | As noted above, Israeli law generally interprets licenses according to 347 | the standard rules of contract law. As such, a license that does not 348 | contain an express term may be terminated by the licensor by providing 349 | reasonable prior notice. What constitutes “reasonable” prior notice 350 | varies on a case-by-case basis according to the circumstances, and is 351 | ultimately a question determined by the court. FOSS licenses do not 352 | generally contain an express term and are generally granted for an 353 | indefinite period of time. As such, Israeli law presents the risk that a 354 | FOSS licensor can terminate a FOSS license upon reasonable notice.[^israel_15] 355 | 356 | ### Waiver and liability 357 | 358 | FOSS licenses typically contain strong disclaimers of warranties and 359 | liability. The enforceability of such broad disclaimers under Israeli 360 | statutory law is not entirely clear, and the case law has not yet 361 | considered the application of broad disclaimers in the software 362 | licensing context. However, it is important to note under Israeli law 363 | that such disclaimers may be entirely reasonable for FOSS that is made 364 | freely available without charge, especially considering that the author 365 | of such works may not have any control over the actual distribution or 366 | use of her work. 367 | 368 | Israeli law provides for certain implied warranties in the context of a 369 | sale of goods, services or rights, including with regard to rights in 370 | intellectual property.[^israel_16] For example, Section 11(3) of the Sale Law 371 | of 1968 (the “Sale Law”) generally provides for implied warranties of 372 | “regular or commercial use or any other special purpose that may be 373 | implied by agreement”. These implied contract terms are similar but not 374 | equivalent to the implied warranties of merchantability and fitness for 375 | a particular purpose provided by the Uniform Commercial Code. 376 | Additionally, Section 18(a) of the Sale Law provides for an implied 377 | warranty of non-infringement. These provisions of the Sale Law predate 378 | the significant development of the Israeli high-tech industry and do not 379 | seem to have been directed towards the problems raised by intellectual 380 | property licenses generally and software licenses in particular. In 381 | addition, Israeli case law regarding the application of these statutory 382 | provisions to intellectual property is sparse. 383 | 384 | The ability of contracting parties to entirely disclaim such implied 385 | warranties is not entirely clear. Section 4(b) of the Sale Law provides 386 | that warranties will be implied only in the absence of any agreement to 387 | the contrary between the parties. At the same time, however, the 388 | Standardized Contract Law provides that a court may ignore or change 389 | unconscionable terms in a “standardized contract”, and Section 4(1) of 390 | that statute provides for a presumption that contractual terms limiting 391 | liability in a “standardized contract” will be deemed unconscionable. 392 | FOSS licenses, in that they are typically drafted in advance by the 393 | licensor for an indefinite number of licensees who are not able to 394 | negotiate the terms of the license, facially fit the statutory 395 | definition of a “standardized contract.” As noted above, however, broad 396 | disclaimers of liability and warranty may be entirely appropriate in the 397 | FOSS context. The enforceability of such disclaimers in the software 398 | licensing context in general and for FOSS licenses in particular has not 399 | yet been examined by Israeli case law. 400 | 401 | Licensors should note that Section 16 of the Sale Law provides that the 402 | implied warranties of merchantability and fitness for a particular 403 | purpose may not be disclaimed if the non-conformity results from facts 404 | that the seller “knows or has reason to know of”. While not explicit in 405 | the statute, this provision may also apply to the implied warranty of 406 | non-infringement.[^israel_17] Again, the application of these provisions to the 407 | licensing of intellectual property has not been satisfactorily explored 408 | in Israeli case law. 409 | 410 | ## Remedies 411 | 412 | ### Copyright infringement — damages 413 | 414 | Under Israeli law, a copyright holder may be entitled to either an 415 | accounting of profits or damages (whether actual or statutory) for the 416 | infringement of a copyright.[^israel_18] Criminal penalties may also be 417 | generally imposed with regard to infringements of copyright in commerce, 418 | but a full discussion of such criminal penalties is beyond the scope of 419 | this article. 420 | 421 | In an accounting of profits, the plaintiff is entitled to receive the 422 | profits obtained as a result of the infringement of the copyrighted 423 | work. Often only a part of the defendant’s work is based on the 424 | infringed work, and in such event a court must determine what proportion 425 | of profits should be allocated to the infringed work. Though the 426 | question has not yet been addressed by case law, it seems that an 427 | infringer of software (including FOSS) should similarly be entitled to 428 | an accounting of profits of the infringing party.[^israel_19] 429 | 430 | Actual damages may be difficult to assess in a suit for FOSS 431 | infringement, especially where the work is generally made available free 432 | of charge. In addition to actual damages, however, the Copyright Law 433 | also provides for the possibility of statutory damages in the amount of 434 | up to 100,000 New Israeli Shekels for each instance of infringement, 435 | without any requirement to prove actual damages. A court generally has 436 | wide latitude in setting the amount of statutory damages. Section 56(b) 437 | of the Copyright Law sets out factors that for the court to consider in 438 | this regard. Factors applicable to the infringement of FOSS may include 439 | the damage caused to the copyright holder, the profits of the infringing 440 | party and whether the infringing party acted in good faith. 441 | 442 | FOSS copyright owners may find claims for statutory damages easier to 443 | assert than attempting to prove actual damages. The plaintiffs in 444 | Reuveni, for example, asserted a successful claim for statutory damages. 445 | At the same time, the court in Reuveni, in setting the amount of 446 | statutory damages, also took into account the fact that the plaintiffs 447 | were amateur hobbyists who did not expect to profit from the copyrighted 448 | works and who, in fact, did not suffer material economic damage from the 449 | infringement. In light of these factors, the court awarded the 450 | plaintiffs substantially less than the 100,000 NIS ceiling per 451 | infringement. The court distinguished the facts in Reuveni from another 452 | case where the infringed work was the well-known photo of a professional 453 | photographer and where the court had awarded substantially higher 454 | statutory damages per infringement. While FOSS copyright holders are 455 | often professional programmers or engineers, FOSS is often provided free 456 | of charge by the copyright holder with little or no expectation of 457 | economic gain. As such, the factors enumerated in Reuveni may prove 458 | relevant to the calculation of statutory damages in future FOSS 459 | infringement actions. 460 | 461 | Section 60(c) of the Copyright Law may restrict the remedies available 462 | against a licensee in good faith of intellectual property. While Section 463 | 60 of the Copyright law sets forth certain actions that a court may 464 | order in respect of an infringing work, Section 60(c) subjects these 465 | provisions to the “market overt rule” set forth in Section 34 of the 466 | Sale Law. Subject to the conditions of the statute, the “market overt 467 | rule” provides that the purchaser of an item in good faith obtains good 468 | title regardless of whether the vendor itself can pass on good title. As 469 | such, an owner of intellectual property may be restricted in his ability 470 | to file suit against the end users of pirated or infringing intellectual 471 | property, and may only be able to file suit against the providers such 472 | infringing works. 473 | 474 | ### Contract remedies — injunction 475 | 476 | Section 53 of the Copyright Law provides that the holder of a copyright 477 | is entitled to obtain an injunction against an infringer, “unless the 478 | court determines that justifications exist for denying such an 479 | injunction.” Israeli courts may also grant temporary injunctions against 480 | infringers. [^israel_20] The grant of an injunction may prove of central 481 | importance to the licensor of open source software, especially given the 482 | difficulty of proving actual damages. The plaintiffs in Reuveni had 483 | dropped their demand for an injunction, and the court in that case 484 | opined that the course of events would have in any event mooted such a 485 | demand. Nonetheless, the court seemed to state that it would have been 486 | prepared to consider such a demand had it been raised by the plaintiffs. 487 | 488 | ### Contract remedies — specific performance 489 | 490 | In addition to an infringement claim, copyright holders may also bring 491 | an action for breach of contract. Specific performance is a remedy 492 | theoretically available under Israeli law for the breach of contract. 493 | Section 3 of the Contract Law (Remedies for Breach) of 1970 expressly 494 | provides for the availability of this remedy to the non-breaching party, 495 | and a long tradition of Israeli case law has emphasized the importance 496 | of specific performance as a remedy for breach of contract.[^israel_21] This 497 | approach contrasts strongly with the common law tradition of favoring an 498 | award of monetary damages rather than specific performance of the 499 | contract. 500 | 501 | As such, to the extent contractual remedies are available for breach of 502 | an open-source license, licensees may find themselves exposed to the 503 | possibility of orders for specific performance. Such orders could 504 | include, for example under the terms of the GPL, an injunction to 505 | release the source code of the licensee’s work. Licensees that have 506 | discounted the possibility of such injunctions under the rules of other 507 | legal systems should be aware of this possibility under Israeli law. 508 | 509 | [^israel_bio]: *Eli Greenbaum is an attorney at Yigal Arnon & Co. in Jerusalem, specialising in 510 | intellectual property law and transactions. He has an M.S. in Applied 511 | Physics from Columbia University and a J.D. from Yale Law School. Eli 512 | has published widely in the areas of open source software and 513 | open hardware. 514 | * 515 | 516 | 517 | [^israel_1]: The Copyright Act of 1911 and the Copyright Ordinance of 1924 518 | continue in certain circumstances to apply to works and acts of 519 | infringement that predate the Copyright Law. 520 | 521 | [^israel_2]: Israel is a signatory to the WIPO Copyright Treaty, but has yet to 522 | ratify the treaty or introduce implementing legislation. Several 523 | provisions of the WCT, however, have been implemented in the 524 | Copyright Law. Other provisions, such as the requirement of 525 | contracting states to provide for legal remedies against the 526 | circumvention of effective technological measures, have not yet been 527 | adopted into Israeli law. See below under the heading “Technical 528 | Devices and Effective Technological Measures”. 529 | 530 | [^israel_3]: See paragraphs 15-16 of the dissenting opinion of Justice Englard 531 | in IE 1567/99 Sivan v. Shefer, discussing the English and American 532 | approaches and their application to Israeli law. See also IE 5365/11 533 | AKUM Ltd. v EMI Music Publishing Ltd. (suggesting, but not holding, 534 | that the proper intepretation of the rights of joint owners under 535 | Israeli copyright law should be determined by reference to Section 536 | 31(A)(1) of the Real Property Law, which provides that joint owners 537 | in property can each make reasonable use of the property without the 538 | permission of the other owners, as long as that use does not 539 | interfere with the rights of other owners.) 540 | 541 | [^israel_4]: TONY GREENMAN, ZEHUYOT YOZRIM, “Copyright”, 2nd ed. 2008 542 | (hereinafter GREENMAN), at 212. 543 | 544 | [^israel_5]: This article does not address the question of whether the GPL may 545 | potentially reach beyond the statutory definition of a “derivative 546 | work”. The answer to that question depends on the contractual 547 | validity and interpretation of the GPL. 548 | 549 | [^israel_6]: 1 GREENMAN, at 265. 550 | 551 | [^israel_7]: The Copyright Law enumerates other “permitted uses” which are not 552 | applicable or not specific to computer programs, including the 553 | doctrine of “fair use”. These “permitted uses” are beyond the scope 554 | of this chapter. 555 | 556 | [^israel_8]: See the Proposed Copyright Law, 196 Reshumot 1116 (July 20, 2005), 557 | at 1127. 558 | 559 | [^israel_9]: See, e.g., Sections 12 (requiring parties to act in good faith in 560 | contractual negotiations), and 39 (requiring good faith in 561 | satisfying contractual terms and obligations) of the Contract Law of 562 | 1973. 563 | 564 | [^israel_10]: The Free Software Foundation has taken the position that the GPL 565 | is a license but not a contract. See 566 | . This position 567 | seems to be motivated by an attempt to circumvent the legal 568 | requirements of contract formation, such as the elements of offer 569 | and assent. However, many commentators have asserted that this 570 | position is not an accurate description of the law. See HEATHER J. 571 | MEEKER, THE OPEN SOURCE ALTERNATIVE (2008) at 225. In addition, it 572 | is unclear under Israeli law whether a license cannot be a contract. 573 | See generally 2 GREENMAN, at 555 (describing a license as a 574 | contract) and 568 (describing the GPL and open source licenses as 575 | enforceable legal contracts). The question of whether the GPL is a 576 | contract or license may take on more signifigance in Israel, where 577 | specific performance can be available as remedy for breach of 578 | contract. This is discussed is more detail below in the context of 579 | contractual remedies for the breach of the GPL. In any event, the 580 | position taken by the Free Software Foundation need not be the 581 | stance of all licensors of FOSS, whether made available under the 582 | GPL or pursuant to other FOSS licenses. 583 | 584 | [^israel_11]: This approach is cogently and succinctly expressed by section 5 585 | of version 2.1 of the GPL: “You are not required to accept this 586 | License, since you have not signed it. However, nothing else grants 587 | you permission to modify or distribute the Program or its derivative 588 | works. These actions are prohibited by law if you do not accept this 589 | License. Therefore, by modifying or distributing the Program (or any 590 | work based on the Program), you indicate your acceptance of this 591 | License to do so, and all its terms and conditions for copying, 592 | distributing or modifying the Program or works based on it.” See 593 | also Section 9 of version 3.0 of the GPL. 594 | 595 | [^israel_12]: GABRIELA SHALEV, DINEI HOZIM, “Laws of Contracts” at 608 (1990) 596 | (hereinafter SHALEV). Together with this acceptance of “standardized 597 | contracts” as generally valid, Israeli law limits the efficacy of 598 | “unconscionable” terms in such contracts. See the discussion below 599 | under the heading “Waiver and Liability”. 600 | 601 | [^israel_13]: See also 2 GREENMAN, at 568 (describing the GPL and open source 602 | licenses as enforceable legal contracts). Note that the question of 603 | whether a FOSS license is a contract or not should not affect the 604 | rights in bankruptcy. Section 123 of the Bankruptcy Ordinance - 605 | 1980, which provides for the continued use of copyrights by a 606 | licensee in bankruptcy so long as royalties continue to be paid, 607 | does not distinguish between contractual or other rights in 608 | intellectual property. 609 | 610 | [^israel_14]: As noted, the FOSS license is the only authorization a defendant 611 | may have to use the FOSS work. As such, defendants may have little 612 | incentive to challenge the validity of the license. The defendants 613 | in Reuveni, for example, did not attack the contractual validity of 614 | the Creative Commons license. This may not be true, however, with 615 | regard to FOSS licenses that impose affirmative obligations on 616 | licensees, such as the requirements of the GPL with regard to the 617 | disclosure of source code. 618 | 619 | [^israel_15]: 2 GREENMAN, at 555. 620 | 621 | [^israel_16]: See Section 4(a) of the Sale Law. See also EYAL ZAMIR, HOK 622 | HAMEHER, “The Sale Law of 1968” (1987) (hereinafter ZAMIR), at 138. 623 | 624 | [^israel_17]: ZAMIR, at 379. 625 | 626 | [^israel_18]: The remedies of actual damages and an accounting of profits are 627 | implied by the Copyright Law, though not expressly provided for 628 | therein. Section 52 of the Copyright Law provides that the 629 | infringement of a copyright is cause for a civil action for damages, 630 | and case law has held that plaintiffs are entitled to an accounting 631 | of profits or actual damages. See, e.g. , 23/81 Hershko v. Orbach 632 | (1988) and 241/55 Neographica Printing vs. Masada (1957). Actual 633 | damages, as used herein, includes possible damages for the “theft” 634 | of the copyright as well as indirect damages. A discussion of the 635 | method of calculation of actual damages for copyright infringement 636 | under Israeli law is beyond the scope of this article. Regarding the 637 | remedy of an accounting of profits, see 2 GREENMAN, at 790. 638 | 639 | [^israel_19]: The questions raised by an accounting of profits did not come up 640 | in Reuveni, as the defendant in that case did not collect any actual 641 | profits from the sale of the infringing work. See Reuveni at pp.4. 642 | 643 | [^israel_20]: Generally, in determining whether to grant a temporary 644 | injunction, a court will weigh the “balance of the hardships” – the 645 | damage to the plaintiff if the request for temporary relief is 646 | rejected against the damage to the plaintiff (or other parties) if 647 | the request is granted. Prior to the adoption of the Copyright Law 648 | in 2007, the Supreme Court opined that a temporary injunction for 649 | the infringement of copyright “should be granted immediately once 650 | the copyright holder has succeeded in proving that its rights have 651 | been infringed.” See RAA 67141/02 Akum Ltd. vs. Galie Tzahal (2003). 652 | Even so, the subsequently-adopted section 53 of the Copyright Law 653 | might be interpreted as granting courts more discretion in 654 | determining whether to award a temporary injunction. 655 | 656 | [^israel_21]: See SHALEV, at 527, n. 1. 657 | 658 | -------------------------------------------------------------------------------- /src/50-South_Africa.markdown: -------------------------------------------------------------------------------- 1 | # South Africa 2 | 3 | *Andrew Rens[^south_africa_bio]* 4 | 5 | ## Introduction to Software Protection under South African Law 6 | 7 | ### Body of Law 8 | 9 | The law affecting rights and control over computer programs is 10 | essentially statutory. Rights in software in South Africa arise 11 | primarily from the Copyright Act[^south_africa_1]. Historically South African 12 | copyright legislation and judicial interpretation of copyright 13 | legislation have been influenced by British law. Software is in theory 14 | not patentable in South Africa[^south_africa_2], but since South Africa registers 15 | patents without substantive examination patents over software have been 16 | registered[^south_africa_3]. Although these patents are in principle void it is 17 | necessary to approach a court to declare them void thus they have some 18 | effect in practice. 19 | 20 | Apart from copyright and patent legislation rights to computer programs 21 | are most affected by the common law of contract. South Africa is a Roman 22 | Dutch common law jurisdiction[^south_africa_4] in which the principles underlying the 23 | common law of contract and property are based upon the 'ius civilis’in a 24 | way analogous to Scotland. It is worth noting that South Africa has a 25 | fully justiciable Bill of Rights which includes socio-economic rights 26 | and enables the enforcement of fundamental rights against non-State 27 | actors. The Constitutional Court has refused to recognize a right to 28 | intellectual property as a fundamental right.[^south_africa_5] 29 | 30 | ### Copyright Act: Object of Protection 31 | 32 | Computer programs are the subject of copyright protection as a 33 | specifically designated category of work. A computer program is defined 34 | as a set of instructions which when used directly or indirectly in a 35 | computer, directs its operation to bring about a result’[^south_africa_6]. Both 36 | subject and object code therefore fall within the definition of computer 37 | program. A program need not function correctly to be eligible for 38 | copyright protection[^south_africa_7]. The definition of literary works explicitly 39 | excludes computer programs. However preparatory materials such as flow 40 | charts do not fall within the definition of computer program and are 41 | therefore protected as literary works. Other categories of works such as 42 | cinematographic films are defined so as to exclude computer 43 | programs[^south_africa_8]. 44 | 45 | To be eligible for copyright a computer program must be reduced to 46 | material form[^south_africa_9]. Recording as ‘digital data’ meets the requirement. 47 | Copyright is regarded as an immovable intangible[^south_africa_10]. 48 | 49 | ### Copyright Holders 50 | 51 | The holder of the exclusive rights of copyright is referred to as the 52 | owner in the Copyright Act. 53 | 54 | The author of a computer program is the person who exercised control 55 | over the making of the computer program[^south_africa_11]. Copyright in software 56 | vests in the person regarded as the author[^south_africa_12] except when it vests in 57 | the employer of the author because it is regarded as taking place in the 58 | course of employment. Co-creators are joint-authors and usually 59 | joint-owners. A computer program made *in the course of the author’s 60 | employment* vests in the employer[^south_africa_13]. This has been interpreted very 61 | broadly. A person who was not employed to write code who nevertheless 62 | wrote code using his own time and computer resources but who used the 63 | code in his work duties, and modified it to be compatible with software 64 | used by his employer and as requested by fellow employees was held by a 65 | court to have acted in the course of his employment[^south_africa_14]. The default 66 | rule on employee created software may be modified by contract[^south_africa_15]. The 67 | statutory provision that copyright in a computer program made by an 68 | employee vests in the employer does not apply to contractors. However 69 | the definition of author as the person who exercise control over the 70 | making of a program has been interpreted so that an independent 71 | contractor who planned and wrote code was not regarded as the author, 72 | instead the person who contracted him and decided how he wanted the 73 | software modified was regarded as the author[^south_africa_16]. One consequence is 74 | that an independent contractor might be the author and owner of the 75 | preparatory materials of a computer program and of literary, artistic, 76 | musical and cinematographic outputs of a computer program while the 77 | person who commissioned the contractor might be regarded as author and 78 | owner of the computer program. 79 | 80 | However when an independent contractor agrees to create a computer 81 | program which is clearly specified beforehand and without further 82 | instructions albeit periodic review then the independent contractor will 83 | likely be the author[^south_africa_17]. There is no statutory provision to enable 84 | variation by agreement of the default rule that apart from employment 85 | relationships the person deemed to be author is owner, however an 86 | agreement to assign copyright in a computer program that hasn’t yet been 87 | written is valid[^south_africa_18]. 88 | 89 | Copyright in computer programs made under the direction or control of 90 | the State or an international organization vests in the State or 91 | international organization[^south_africa_19]. Copyright in software that is produced 92 | under the direction or control of South African government departments 93 | vests in a state held company; the State Information Technology Agency 94 | (Pty) Ltd.[^south_africa_20]. If a literary, musical, artistic work or a computer 95 | program is computer generated then the person who made the arrangements 96 | for the creation of the work is regarded as the author [^south_africa_21]. The 97 | category of computer generated computer program is confined to machine 98 | generated code and doesn’t include use of software tools such as editors 99 | or compilers. 100 | 101 | ### Exclusive Rights 102 | 103 | According to section 11B of the Copyright Act the owner of copyright in 104 | a computer program has the exclusive rights (following the sub-paragraph 105 | designation in the Act) of: - 106 | 107 | “(a) reproducing the computer program in any manner or form; (b) 108 | publishing the computer program if it was hitherto unpublished[^south_africa_22] (c) 109 | performing the computer program in public; (d) broadcasting the computer 110 | program; (e) causing the computer program to be transmitted in a 111 | diffusion service, unless such service transmits a lawful broadcast, 112 | including the computer program, and is operated by the original 113 | broadcaster; (f) making an adaptation of the computer program; (g) 114 | doing, in relation to an adaptation of the computer program, any of the 115 | acts specified in relation to the computer program in paragraphs (a) to 116 | (e) inclusive; (h) letting, or offering or exposing for hire by way of 117 | trade, directly or indirectly, a copy of the computer program.” 118 | 119 | Reproduction in any manner or form includes digital forms. Reproducing a 120 | substantial portion of a computer program is regarded as reproduction 121 | and the same approach is taken to all the exclusive rights[^south_africa_23]. An 122 | adaptation of a computer program is defined to include a version of the 123 | program in a different programming language, code or notation different 124 | or fixed in a different medium[^south_africa_24]. Compiling or decompiling a program 125 | is regarded as making an adaptation. An adaptation must itself be a 126 | computer program, that is subject code or object code. An adaptation is 127 | always regarded as also a reproduction.[^south_africa_25]There is considerable 128 | overlap between the definitions of reproduction and adaptation. Thus if 129 | a user copies a computer program without significant modification he 130 | will be regarded as having reproduced the program while if he modifies 131 | it but retains a substantial portion then he will be regarded as having 132 | both reproduced and adapted the program. Someone who creates an 133 | adaptation may, absent use under an exception, require two licenses from 134 | the rightsholder in the prior program, a license to reproduce and a 135 | license to adapt. If the prior program has not been published then the 136 | person creating the adaptation will also require a publication license 137 | in order to distribute the program. An adaptation that is sufficiently 138 | original will constitute an original computer program , even if it 139 | infringes the first computer program [^south_africa_26]. 140 | 141 | The output generated by a computer program that is discernible by the 142 | public is not a computer program but rather a literary, artistic work, 143 | cinematographic film or sound recording. Performance is defined by 144 | reference to ‘any mode of visual or acoustic presentation’[^south_africa_27]. It is 145 | therefore not clear what amounts to performing a computer program in 146 | public, especially if there is no output. 147 | 148 | There is no specific right of distribution[^south_africa_28]. 149 | 150 | ### Exceptions to Exclusive Rights 151 | 152 | Lawful possessors of computer programs can use the single exception 153 | specific to computer programs to make copies reasonably necessary for 154 | back up, exclusively for personal or private purposes. The copies must 155 | be destroyed when possession of the computer program ceases to be 156 | lawful[^south_africa_29]. 157 | 158 | The Copyright Act lists a number of exceptions for literary and artistic 159 | works. For each other category of work, including computer programs a 160 | different selection from the list is applied, in so far as they can be 161 | applied. For computer programs these include 162 | 163 | - fair dealing for purposes of criticism or review, 164 | 165 | - fair dealing in a broadcast or cinematographic film, 166 | 167 | - use in judicial proceedings, 168 | 169 | - quotation compatible with fair practice, 170 | 171 | - illustration for teaching compatible with fair practice, 172 | 173 | - reproduction in preparation for broadcast, 174 | 175 | - use in a broadcast where use in a cinematographic film has been 176 | authorized[^south_africa_30]. 177 | 178 | Precisely how many of these exceptions apply in practise to computer 179 | programs is unclear. The validity of provisions purporting to restrict 180 | use of the exceptions has not been ruled on but they are likely to be 181 | ruled invalid as ‘contra boni mores’ and defeating the purpose of 182 | copyright legislation. 183 | 184 | ### Moral Rights 185 | 186 | Moral rights were introduced into South African copyright law in order 187 | to comply with the Berne Convention, and there is no history nor legal 188 | theory animating the rights. Computer programs are listed as one of the 189 | type of works in which moral rights vest. The author of a computer 190 | program has the moral rights, regardless of transfer of the copyright in 191 | the program, to claim authorship of the computer program, and to object 192 | to any distortion, mutilation or other modification prejudicial to his 193 | honour or reputation but may not prevent changes absolutely necessary on 194 | technical grounds or for the purpose of commercial exploitation[^south_africa_31]. 195 | Even though the inclusion of clauses purporting to transfer or waiver 196 | moral rights in copyright agreements is common practice there is no 197 | provision enabling the assignment or waiver of moral rights in the 198 | authorising legislation. 199 | 200 | ### Term of Protection 201 | 202 | The same term applies to computer programs, cinematographic films and 203 | photographs; fifty years. The fifty years is calculated from the end of 204 | the year in which the computer program is first published or made 205 | available to the public, or if neither has taken place then fifty years 206 | from the making of the program. 207 | 208 | ### Copyright Assignment 209 | 210 | Copyright may be transferred by assignment or in a will [^south_africa_32]. An 211 | assignment or an exclusive license must be in writing and signed[^south_africa_33]. 212 | The writing requirement can be met by a digital format[^south_africa_34]. The 213 | signature requirement can only be met by an ‘advanced digital signature’ 214 | facilitated by a registered provider[^south_africa_35]. Any of the exclusive rights 215 | can be assigned or licensed separately, and assignment can be limited to 216 | a specific geographic area or to part of the copyright term. 217 | 218 | Non exclusive licenses do not require any formalities and may be oral or 219 | inferred from conduct but can be revoked at any time unless the non 220 | exclusive license is granted by means of a contract which governs 221 | revocation. It is not necessary for a license to use the term 222 | irrevocable for it to be construed as irrevocable, however for a license 223 | to be irrevocable it must be a contract, and whether it is irrevocable 224 | will be depend on how the contract as a whole is construed. A contract 225 | may specify in what circumstances, if any, a license may be 226 | revoked[^south_africa_36]. A contractual license may specify that it is irrevocable 227 | except for breach, and allow for automatic termination on breach, 228 | termination on notice and reinstatement. Generally a contract is created 229 | in South African law when two or more persons with the power to contract 230 | engage in conduct that demonstrates an intention to be legally bound. 231 | Although usually analyzed as an ‘offer’ and an ‘acceptance’ all that is 232 | required is an objective ‘consensus ad idem’; that is a meeting of the 233 | minds apparent from conduct of the parties. Consideration is not 234 | required to form a binding contract in the South African common law of 235 | contract. 236 | 237 | ### Technical Protection Measures and Anti-Circumvention 238 | 239 | There are no provisions defining technical protection measures or 240 | prohibiting circumvention of technical protection measures in South 241 | African copyright law. However provisions of the Electronic 242 | Communications and Transactions Act 2003 may operate as 243 | anti-circumvention measures[^south_africa_37]. The Act creates a number of statutory 244 | criminal offenses; intentionally accessing, or modifying, deleting or 245 | de-activating data without authority or permission are criminal 246 | offenses[^south_africa_38]. A copyright license constitutes permission to access or 247 | modify data, while accessing or modifying data that falls within a 248 | copyright exception would be authorized. The definition of the offenses 249 | is so vague that the provision may be unconstitutional. Production, 250 | distribution and possession of a computer program designed primarily to 251 | overcome security measures for the protection of data is also a criminal 252 | offense. 253 | 254 | ### Enforcement 255 | 256 | Copyright in a computer program is infringed by anyone who without 257 | permission, and absent an exception, commits one of the acts reserved 258 | for the copyright holder. Parallel import of copies of a program legally 259 | available in other jurisdictions can also be infringing in certain 260 | circumstances. Knowingly importing (other than for private and domestic 261 | use), selling, letting, distributing for trade or acquiring a computer 262 | program produced outside South Africa without the permission of the 263 | rights holder in South Africa is also an infringement[^south_africa_39]. As a result 264 | of the requirement of knowledge a rightsholder who had authorized 265 | production and distribution of a computer program outside South Africa 266 | would thus have to give notice to recipients in South Africa of the 267 | copies of the program legitimately produced elsewhere in order to render 268 | future dealing with the copies infringing. 269 | 270 | In addition to civil infringement of copyright certain commercial 271 | activities have been criminalized. It is a criminal offense knowingly 272 | and without permission from the copyright owner to: 273 | 274 | - make for sale or hire; 275 | 276 | - sell or let for hire; 277 | 278 | - exhibit in public by way of trade; 279 | 280 | - import into the Republic other than for private or domestic use; 281 | 282 | - distribute for purposes of trade or to such an extent so as to 283 | prejudice the owner; 284 | 285 | infringing copies of a computer program. The owner of copyright in South 286 | Africa may require the customs authorities to treat imported copyright 287 | goods as prohibited goods[^south_africa_40]. 288 | 289 | The Counterfeit Goods Act[^south_africa_41] definition of counterfeiting includes 290 | manufacturing, producing or making whether in South Africa or elsewhere 291 | copyright infringing copies that are substantially identical to 292 | copyright protected goods without the permission of the exclusive rights 293 | holder in South Africa. Dealing in counterfeit goods is a criminal 294 | offense, and alleged counterfeit goods may be seized by the police or 295 | customs authorities. 296 | 297 | ## Unprotected software and public domain software 298 | 299 | Computer programs are treated as a distinct category of work, defined as 300 | instructions that direct the operation of a computer. Computer programs 301 | are treated in a very similar way to cinematographic films, sound 302 | recordings, broadcasts and programme carrying signals in respect of 303 | authorship, terms and exclusive rights. Cinematographic films, sound 304 | recordings, broadcasts and programme carrying signals are technical 305 | works in which only the precise embodiment is protected. Abstract 306 | aspects of these works are not protected by these categories although 307 | they may be protected as literary, artistic or musical works. This 308 | suggests that computer programs are also technical works and that 309 | abstract aspects such as the architecture and the *look and feel* of a 310 | program fall outside the definition of a computer program. 311 | 312 | There is no provision in the copyright legislation that enables an 313 | exclusive rights holder to dedicate a computer program to the public 314 | domain. This does not mean that it is not possible to do so. South 315 | African common law permits both abandonment of property, and waiver of 316 | rights. Waiver of rights must take place through an unequivocal act by 317 | the holder of the rights showing that he knew his rights and intended to 318 | give them up. A written deed dedicating a computer program to the public 319 | domain would seem to meet these criteria. Although a signature on the 320 | deed would not be a formal requirement it would strongly indicate that a 321 | rights holder knew he was giving up rights. 322 | 323 | ## Analysis of FOSS under South African law 324 | 325 | A user who made substantial changes to copyleft code would require a 326 | license from the rightsholder of the first version of the code since 327 | making the changes would be an adaptation and a copy of the first 328 | version of the code. Although South African copyright law permits a bare 329 | copyright license without requiring a contract, the only way to ensure 330 | that a non-exclusive license is not revocable at will is through 331 | incorporating the license in a contract that governs revocation[^south_africa_42]. 332 | The general rule is that a person accepting an offer to contract must 333 | communicate acceptance to the person making the offer. However it is 334 | very well established that when the offer to contract itself sets out a 335 | means of acceptance which does not require communication with the person 336 | making the offer then acting in the manner prescribed constitutes 337 | acceptance[^south_africa_43] 338 | 339 | FOSS licenses can therefore be construed as contracts; use of a computer 340 | program as permitted by the FOSS license, and adherence to the 341 | requirements of the license constitute acceptance sufficient to create a 342 | binding agreement. Anyone who uses FOSS licensed software in a way which 343 | requires copyright permission but does not adhere to the license has 344 | thus failed to accept the offer constituted by the license, has no 345 | permission and therefore, if an exception does not apply to the use, 346 | infringes the copyright in the software. If a license contains a 347 | copyleft clause then a user of the software would have to comply with 348 | the copyleft clause, including sharing changes under the same or 349 | equivalent license in order to properly accept the contract under which 350 | he gained permission. Failure to comply with the copyleft clause would 351 | vitiate the formation of a contract and thus render a non-compliant user 352 | liable for copyright infringement. Alternatively if there were 353 | sufficient initial compliance with the terms of the FOSS license to 354 | evidence an intention to be bound by the license then the terms of the 355 | license would govern a breach. 356 | 357 | It is not necessary to construe adherence to the terms of a FOSS license 358 | as constituting consideration. 359 | 360 | ### Copyrights 361 | 362 | When two or more authors collaborate to produce a computer program in 363 | which contributions of each author are not separable from the 364 | contribution of others the result is regarded as jointly authored. If 365 | the results are separable, for example modules of a program, then each 366 | constitutes a computer program for legal purposes even if it cannot 367 | function without the other modules. The issue is not whether parts can 368 | function separately but whether the contribution of skill, effort and 369 | judgement of an author can be distinguished from others. The unique 370 | definition of author of a computer program in South African copyright 371 | law may make issues of joint authorship in FOSS projects less 372 | problematic than in other jurisdictions since the author is regarded as 373 | the person who exercises control over the making of the program, as a 374 | result only someone with commit authority in a FOSS project can be 375 | regarded as an author. If a project is set up so that a few contributors 376 | are each responsible for a module or modules then each module may be 377 | regarded as a separate program authored by that contributor. 378 | Contributers of only a few lines of code will not be regarded as 379 | authors. Only those who have authority to decide what is included in a 380 | version of a program, or portion of a program will be authors. 381 | 382 | The definition of authorship does however pose problems for FOSS in two 383 | situations. Computer programmers who customize FOSS which they have 384 | created for use in their workplaces run a risk that a court may regard 385 | their work as vesting in their employers. The risk can be reduced by 386 | contributors who are employees using FOSS without modification in their 387 | workplaces or alternatively by stipulating clearly in employment 388 | agreements that code shall be open source. Independent contractors who 389 | customize FOSS for clients also face a risk that the client will be 390 | regarded as having exercised control over the making of the computer 391 | program and will be regarded as the author. Independent contractors 392 | wishing to avoid that outcome should carefully limit the control 393 | exercised by the client and in any case require agreement that whatever 394 | code is written shall be distributed under the chosen FOSS license 395 | regardless of who owns it. 396 | 397 | Later versions of a FOSS program and forked FOSS code are reproductions 398 | for as long as they contain substantial portions of the originating 399 | program. They are also adaptations of the originating program, but only 400 | if they can be regarded as including a substantial portion of the 401 | originating program. 402 | 403 | #### Assignment of copyrights 404 | 405 | Assignment of copyright in a FOSS contributor’s agreement, such as the 406 | agreement used by the Free Software Foundation will require a paper copy 407 | be made and mailed, not because electronic documents are invalid but 408 | because only a paper and ink signature or an advanced electronic 409 | signature provided by a provider registered in South Africa will meet 410 | the signature requirement for a valid copyright assignment. Use of 411 | advanced electronic signatures is not widespread. On the other hand a 412 | contributor to a FOSS project can agree to a contributor agreement which 413 | grants non exclusive rights or licenses work directly under a FOSS 414 | license online where the contributor agreement or license is recorded 415 | digitally. 416 | 417 | ### Moral Rights 418 | 419 | A contributor to a FOSS project has moral rights to the computer program 420 | he has created. The right to object to modification does not extend to 421 | changes that are absolutely necessary for functioning. Beyond that the 422 | precise ambit of the moral rights as they apply to computer programs and 423 | whether they can be waived is not clear. However the nature of the work 424 | being created will influence what constitutes appropriate 425 | acknowledgement of the right of authorship and what constitutes a 426 | modification contrary to the author’s honour. FOSS is by its nature a 427 | co-operative co-creation in which contributors agree concerning 428 | acknowledgement and what changes others may make through either 429 | contributor agreements or licences before committing code. It is 430 | therefore unlikely that a South African court would find copying and 431 | adaptations compliant with those commitments to infringe moral rights. 432 | 433 | ### Enforcing FOSS Licences 434 | 435 | #### Parties to License 436 | 437 | The license must be issued by the owner or a licensee authorised to 438 | issue a FOSS license. In FOSS projects the owner is usually the author 439 | or authors, that is those contributors with authority to decide what is 440 | in a release version and their predecessors. 441 | 442 | #### Contract 443 | 444 | Rather than claiming breach of contract an author would simply claim 445 | copyright infringement, the alleged infringer would have to demonstrate 446 | compliance with the terms of the license in order to show acceptance of 447 | the basis of permission. Alternatively if the user of the program 448 | demonstrated sufficient initial compliance with the license so that the 449 | creation of a contract must be inferred then the provisions of the 450 | license as a contract apply. If the license, such as the GNU GPL 451 | provides for automatic termination on breach then the license will be 452 | terminated by breach and further use will be infringing. If a user has 453 | demonstrated acceptance of the terms of a FOSS license which makes no 454 | provision for revocation but the user subsequently does not comply with 455 | the license the licensor may experience difficulties obtaining a court 456 | order requiring compliance with the other terms of the contract because 457 | South African courts prefer to award damages for breach of contract, 458 | rather than enforce performance of agreements. 459 | 460 | #### Violation of License Terms 461 | 462 | Generally failure to adhere to the conditions of the license indicates a 463 | refusal of the license construed as a contractual offer and thus no 464 | contract is formed, a copier is then liable for copyright infringement. 465 | 466 | ### Waiver and Liability 467 | 468 | There is no requirement arising from copyright legislation or common law 469 | that a person providing FOSS provide any warranty in respect of the 470 | software nor does any warranty arise automatically under copyright 471 | legislation or common law. Disclaimers and limitations of liability are 472 | valid under general principles of contract. However disclaimers and 473 | limitations of liability in favour of third parties cannot take effect 474 | unless one of the parties to the agreement accepts the benefit of the 475 | limitation on behalf of the third party. This usually takes place 476 | through a *stipulatio alteri* a provision in an agreement that a 477 | specified third party will enjoy a specified benefit, and that one of 478 | the parties will accept the benefit of behalf of the third party. For 479 | example a software vendor which holds a sub-license to software may 480 | include in an agreement with a customer a disclaimer of liability on 481 | part of the software creator which is not party to the agreement; the 482 | vendor would accept the benefit of the disclaimer on behalf of the 483 | software creator. A limitation of liability which can be construed as a 484 | unilateral waiver will not require acceptance of the benefit on behalf 485 | of the third party. 486 | 487 | FOSS licenses do not fall under consumer protection legislation. However 488 | a transaction in which a service provider delivered goods and services 489 | to a natural person that included FOSS for consideration in the course 490 | of business would be subject to consumer protection legislation. 491 | 492 | ## Cases 493 | 494 | There have been no reported cases as yet (June 2014). 495 | 496 | ### Legal Procedures 497 | 498 | Only an owner or exclusive licensor can enforce the exclusive rights of 499 | copyright[^south_africa_44]. An owner can claim an interdict [^south_africa_45], damages, or 500 | reasonable royalties and delivery up of infringing copies[^south_africa_46]. If a 501 | work was joint-authored all the joint-authors must agree to an 502 | enforcement action for reasonable royalties or damages[^south_africa_47] because no 503 | rights holder is entitled to all of the damages. A joint-author may 504 | therefore apply for an interdict without the consent of the other 505 | joint-authors. Joint-authors can enter into an agreement that specifies 506 | what percentage of the profits from the computer program each is 507 | entitled to which would enable a joint-author to begin legal proceedings 508 | for his share of damages without the agreement of joint authors. A 509 | defendant could himself join the other joint-authors to the proceedings. 510 | 511 | A rights holder who has grounds to suspect copyright infringement and 512 | that the suspected infringer is likely to dispose of the evidence of the 513 | infringement may apply to court, without the alleged infringer being 514 | given an opportunity to oppose the application, for an order authorizing 515 | the seizure and safe keeping of the evidence pending its production in 516 | litigation[^south_africa_48]. Damages will not be awarded against someone who proves 517 | that there were no reasonable grounds for suspecting that copyright 518 | subsisted in a computer program[^south_africa_49]. 519 | 520 | Whether a substantial portion of a computer program has been copied is a 521 | qualitative question, a few dozen lines of code out of thousands may 522 | constitute a substantial portion if they solve a particularly difficult 523 | problem or are crucial in some other way to the functioning of the 524 | program[^south_africa_50]. 525 | 526 | ### Literature 527 | 528 | Jeremy Speres: ‘The Enforceability of Open Source Software Licences: Can 529 | Copyright Licences Be Granted Non-Contractually?’ South African 530 | Mercantile Law Journal (2009) Vol 21, Number 2, 174 531 | 532 | [^south_africa_bio]: *Andrew Rens (b. 1968) is a South African law and technology scholar and attorney. He 533 | is a Senior Lecturing Fellow at Duke Law School and an attorney at 534 | Garratt Hugo & De Souza Incorporated, Johannesburg, South Africa. He 535 | advises commercial and non-profit clients on open source licenses, open 536 | media licences, open data, open hardware and open standards. 537 | * 538 | 539 | [^south_africa_1]: Copyright Act No. 98 of 1978 540 | 541 | [^south_africa_2]: The Patents Act of 57 of 1978 stipulates in Section 25 (2) 542 | “Anything which consists of— … (f) a program for a computer; ..shall 543 | not be an invention for the purposes of this Act.” 544 | 545 | [^south_africa_3]: Bob Joliffe ‘The word-processing patent - a sceptical view from a 546 | person having ordinary skill in the art’ South African Computer 547 | Journal (2005) 25, 2 548 | 549 | [^south_africa_4]: The other Roman Dutch common law jurisdictions are Lesotho, 550 | Botswana, Swaziland, Zimbabwe and Sri Lanka. 551 | 552 | [^south_africa_5]: Certification of the Constitution of the Republic of South Africa, 553 | \[1996\] ZACC 26 §75 554 | 555 | [^south_africa_6]: Computer Programs are defined in section 1 of the Copyright Act 98 556 | of 1978: LDQUOLSQUOcomputer programLSQUO means a set of instructions 557 | fixed or stored in any manner and which, when used directly or 558 | indirectly in a computer, directs its operation to bring about a 559 | result; (d) a computer program includes - (i) a version of the 560 | program in a programming language, code or notation different from 561 | that of the program; or (ii) a fixation of the program in or on a 562 | medium different from the medium of fixation of the program;RDQUO 563 | 564 | [^south_africa_7]: Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd. and 565 | Others (118/05) \[2006\] ZASCA 40 §24 566 | 567 | [^south_africa_8]: Section 1 of the Copyright Act 568 | 569 | [^south_africa_9]: Section 2 (2) of the Copyright Act stipulates: “A work, except a 570 | broadcast or programme-carrying signal, shall not be eligible for 571 | copyright unless the work has been written down, recorded, 572 | represented in digital data or signals or otherwise reduced to a 573 | material form” 574 | 575 | [^south_africa_10]: Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) 576 | 577 | [^south_africa_11]: Section 1 of the Copyright Act: LDQUOLSQUOauthorRSQUO, in 578 | relation to - (i) a computer program, the person who exercised 579 | control over the making of the computer programRDQUO 580 | 581 | [^south_africa_12]: Section 21 (1) (a) of the Copyright Act 582 | 583 | [^south_africa_13]: Section 21 (1) (d) of the Copyright Act stipulates “Section 21 584 | (d) Where in a case not falling within either paragraph (b) or (c) a 585 | work is made in the course of the author’s employment by another 586 | person under a contract of service or apprenticeship, that other 587 | person shall be the owner of any copyright subsisting in the work by 588 | virtue of section 3 or 4.” 589 | 590 | [^south_africa_14]: King v South African Weather Services \[2008\] ZASCA 143 591 | 592 | [^south_africa_15]: Section 21 (1) (e) of the Copyright Act 593 | 594 | [^south_africa_16]: Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd. 595 | and Others (118/05) \[2006\] ZASCA 40 §41; 2006 (4) SA 458 (SCA) 596 | 597 | [^south_africa_17]: Roux de Villiers ‘Computer Programs and Copyright: The South 598 | African Perspective’ (2006) SALJ 123 315-337 at 324 599 | 600 | [^south_africa_18]: Section 22(5) of the Copyright Act 601 | 602 | [^south_africa_19]: Section 5(2) states that works made under direction or control of 603 | the State or prescribed international organization can be eligible 604 | for copyright while section 21 (2) states that copyright shall vest 605 | in the State or prescribed international organization. 606 | 607 | [^south_africa_20]: Section 21 of the State Information Technology Agency Act No.88 608 | of 1998. 609 | 610 | [^south_africa_21]: Section 1 definition of ‘author’ (h) of the Copyright Act 611 | 612 | [^south_africa_22]: The term publication is defined in section 1(5) of the Copyright 613 | Act to include issuing the work to the public in sufficient 614 | quantities to reasonably meet the needs of the public. Depending on 615 | how ‘diffusion service’ is interpreted it might also cover online 616 | distribution but since publication is defined so as to exclude 617 | transmission in a diffusion service a finding that online 618 | distribution is transmission in a diffusion service would have the 619 | result that online distribution is not publishing. 620 | 621 | [^south_africa_23]: Section 1 (2A) of the Copyright Act 622 | 623 | [^south_africa_24]: Section 1 (1) definition of adaptation (d), the Copyright Act 624 | goes on to define a copy of a computer program as including an 625 | adaptation. 626 | 627 | [^south_africa_25]: Section 1 (1) definition of reproduction of the Copyright Act 628 | 629 | [^south_africa_26]: Section 2 (3) of the Copyright Act 630 | 631 | [^south_africa_27]: Section 1(1) definition of performance of the Copyright Act 632 | 633 | [^south_africa_28]: The rights of publication and transmission in a diffusion service 634 | affect distribution 635 | 636 | [^south_africa_29]: Section 19B(2) of the Copyright Act 637 | 638 | [^south_africa_30]: Section 19B (1) read with Section 12 (1) (b) and (c), (2), (3), 639 | (4), (5), (12) and (13) 640 | 641 | [^south_africa_31]: Section 20. 642 | 643 | [^south_africa_32]: Only copyright, that is the exclusive economic rights vesting in 644 | a copyright holder, may be transferred according to section 22 of 645 | the Copyright Act, moral rights remain vested in authors 646 | “notwithstanding the transfer of copyright” (section 20) 647 | 648 | [^south_africa_33]: Section 22(3) of the Copyright Act 649 | 650 | [^south_africa_34]: Section 1(1) of the Copyright Act: LDQUOLSQUOwritingRSQUO 651 | includes any form of notation, whether by hand or by printing, 652 | typewriting or any similar processRDQUO and section 12 of the 653 | Electronic Communications and Transactions Act No.25 of 2002 654 | stipulates “A requirement in law that a document or information must 655 | be in writing is met if the document or information is- a. in the 656 | form of a data message; and b. accessible in a manner usable for 657 | subsequent reference.” 658 | 659 | [^south_africa_35]: Section 13(1) of the Electronic Communications Transactions Act 660 | No.25 of 2002. 661 | 662 | [^south_africa_36]: Section 22(4) of the Copyright Act 663 | 664 | [^south_africa_37]: Tana Pistorius ‘Developing countries and copyright in the 665 | information age – the functional equivalent implementation of the 666 | WCT’ (2006) 2 *Potchefstroom Electronic Law Journal* 1-21 667 | 668 | [^south_africa_38]: Electronic Communications and Transactions Act 25 of 2002 section 669 | 86. 670 | 671 | [^south_africa_39]: Section 23(2) of the Copyright Act 672 | 673 | [^south_africa_40]: Section 28 of the Copyright Act. 674 | 675 | [^south_africa_41]: Counterfeit Goods Act 37 of 1997 676 | 677 | [^south_africa_42]: Section 22 (4) of the Copyright Act. 678 | 679 | [^south_africa_43]: Bloom v American Swiss Watch Co. 1915 AD 100 and Withok Small 680 | Farms (Pty) Ltd v Amber Sunrise Properties 5 (Pty) \[2008\] ZASCA 681 | 131 682 | 683 | [^south_africa_44]: When an owner brings suit he must give notice to an exclusive 684 | licensee. 685 | 686 | [^south_africa_45]: Injunctions are referred to as interdicts in South African law. 687 | 688 | [^south_africa_46]: Section 24(1) of the Copyright Act 689 | 690 | [^south_africa_47]: Feldman v EMI Music \[2009\] ZASCA 75 (1 June 2009) 691 | 692 | [^south_africa_48]: There are both common law and statutory procedures. The common 693 | law ‘Anton Piller’ order is definitively discussed in Shoba v 694 | Officer Commanding, Temporary Police Camp, Wagendrift Dam; Maphanga 695 | v Officer Commanding South African Police Murder and Robbery Unit, 696 | Pietermaritzburg \[1995\] ZASCA 49, while the statutory procedure is 697 | set out in section 11 of the Counterfeit Goods Act 37 of 1997. 698 | 699 | [^south_africa_49]: Section 24 (2) of the Copyright Act 700 | 701 | [^south_africa_50]: Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd. 702 | and Others (118/05) \[2006\] ZASCA 40 §45 703 | 704 | -------------------------------------------------------------------------------- /src/img/1007350349.jpg: -------------------------------------------------------------------------------- https://raw.githubusercontent.com/IFOSSLawBook/ifosslawbook/a36d68a6982e26086de1954129aac5ea937ce16d/src/img/1007350349.jpg -------------------------------------------------------------------------------- /src/img/cover.png: -------------------------------------------------------------------------------- https://raw.githubusercontent.com/IFOSSLawBook/ifosslawbook/a36d68a6982e26086de1954129aac5ea937ce16d/src/img/cover.png -------------------------------------------------------------------------------- /src/img/textovia-logo.png: -------------------------------------------------------------------------------- https://raw.githubusercontent.com/IFOSSLawBook/ifosslawbook/a36d68a6982e26086de1954129aac5ea937ce16d/src/img/textovia-logo.png --------------------------------------------------------------------------------