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FAQ - Copyright software

COPYRIGHT – SOFTWARE

1. Who is the owner of the patrimonial copyrights for computer programs?
There are two hypotheses:
a) Persons free of any contract create the program independently;
b) The program is created while performing work tasks or following the instructions of the employer.
In the first hypothesis the patrimonial copyright belong to the author.
In the second case, the patrimonial copyrights belong to the employer, if there isn't a contrary clause in the contract. Therefore, pay attention! In case in the contract there are no clauses regarding the beneficiary of the patrimonial copyrights over computer programs, it is supposed that they belong to the employer. In order for them to belong to other persons, specific clauses must be put in the contract.
Attorney Dan Livescu

2.What exactly is protected in case of a computer program?
According to Article 72-(1) of the Law 8/1996 the copyright protection of computer programs "includes any expression of a program, applications and operating systems, expressed in any kind of language, either in source-code or in object-code, the preparing conceiving materials, as well as the manuals."
The law does not define any of the above mentioned concepts. It is, therefore, up to the jurists, to the computer scientists and to the doctrine to clarify the concepts. Their being well-defined is very important for the judicial practice and to the real protection of computer programs.
Attorney Dan Livescu

3.What is it understood by license?
In computer programs trade, in most of the cases, a real selling of that program is not achieved. What it is offered is the right TO USE the program under certain conditions, that is...a license. The documents that accompany a computer program usually contain a warning such as "THE SOFTWARE IS LICENSED NOT SOLD".
The Romanian legislation, Article 2 of the Ordinance of the Executive, also contains a definition of the license: "the license for the computer program - the written consent of the titular of a computer program copyright for the cession of some rights towards the user of the program and which comes with the program."
The license is, therefore, a contract - agreement - between the owner of the copyright and the user. It accompanies the computer program and may be found in various forms. In practice, it can be either in written form (on paper), either in the form of a digital document that appears when the program is installed or opened. The usual denomination for such a document is "LICENSE AGREEMENT". We all saw, when we installed or used a computer program, an announcement of this kind "IMPORTANT - READ CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT DO NOT INSTALL OR USE THIS SOFTWARE PRODUCT". This is followed by the text of the license and (most of the times) by the options the user has if he agrees/does not agree with the terms of the license. The particular features of a license may be very different from one program to another depending on the characteristics of that program as well as on the licensing policy of each copyright owner.
Attorney Dan Livescu

4.What are the rights of the author of a computer program?
According to Article 73 of the Law 8/1996, the author of a computer program has the exclusive right to achieve and authorize: "a) permanent or temporary reproducing of a program, integrally or partially, through any means and in any form, including the case in which reproduction is determined by the incarceration, displaying, transmission or stocking the program on computer;
b) translation, adaptation, arranging and any other transformations brought to a computer program, as well as the reproduction of the result of these operations, without bringing a prejudice to the rights of the person who transforms the computer program;
c) spreading of the original or of the copies of a computer program under any form, including rental."
These special rights of the author of a computer program are completed with the common rights of every creator of an intellectual work as stipulated in the Article 10-23 of the already mentioned Law.
Attorney Dan Livescu

5. In what situations may the authorized user of a computer program make a copy of it, without the authorization of the author?
Without the authorization of the author, the authorized user has the right to make " one archive or safety copy, in the measure in which it is necessary for ensuring the utilization of the computer".
Attorney Dan Livescu

6. May a computer program be reproduced for personal use or for a family circle without the consent of the author?
No, such a copy is not allowed without the consent of the author.
To be noted is that such a copy is forbidden by the law only in the case of computer programs, while in the case of other intellectual creation works it is permitted.
Attorney Dan Livescu

7.Which is the duration of patrimonial copyrights for computer programs?
According to Article 30 of the Law 8/1996, "patrimonial rights for computer programs last throughout the life-span of the author and after his/her death they are transmitted to the legal successors for a period of 50 years, as civil legislation stipulates.
Attorney Dan Livescu

8. What are the legal obligations of the persons who produce, distribute, commercialize or rent computer programs in Romania?
The Ordinance of the Executive 124/2000 regarding "the completion of the juridical framework regarding copyrights and related rights, through the adoption of measures against audio and video pirating, as well as computer programs pirating", institutes, for the persons who produce, distribute, commercialize or rent computer programs on the Romanian territory the obligation to communicate the following to the Romanian Copyright Office:
"a) the consent (agreement) of the titular of the copyright or of the producer for the distribution, commercialization or rental activities;
b) information about the way the license was given and, from case to case, the model of license given, on the Romanian territory, to the computer programs users." (Article 3 (1), letters a, b)
The methodological norms regarding the managing of the RPC (Computer Programs Register) issued by the Romanian Copyright Office impose to the persons who produce, distribute, commercialize or rent computer programs to "register in the RPC in term of 30 days from the date the Ordinance of the Executive 124/2000 came into force or from the beginning of the activities of production, distribution, commercializing or rental of the computer program ."
The above-mentioned methodological norms also specify the forms and the information that must be filed at the Romanian Copyright Office.
Attorney Dan Livescu

9. What are the specific obligations of the producers of computer programs, in Romania?
Besides the general obligations presented above, the computer programs producers have the obligation to communicate the following, for each computer program, to the Romanian Copyright Office:
"a) the act that proves the copyright title over the computer programs or a signed declaration indicating that he/she is the author of the computer programs;
b) the license model given to the users of computer programs on the Romanian territory;
c) a copy of the computer program in the form in which it is produced;
d) information referring to the way the license was given and to the license model given to the users of computer programs on the territory of other states". (Article 1, (3) of the Methodological norms regarding the management of RPC)
Attorney Dan Livescu

10. What is, in fact, a computer program?

Although there is no unanimously accepted definition, most of the definitions included in various documents or various law systems essentially express the same thing. For example:
- According to the standard Law from 1978 issued by the International Organization for Intellectual Property, computer programs are " an ensemble of instructions that are able - from the moment they are transferred in a format readable by a machine which can process information - to indicate, execute or allow the obtaining of a function, task or result."
- According to the Law on Copyright from 1976, subsequently modified, in the USA the computer program is "an ensemble of commands or instructions that are directly or indirectly used in a computer in order to produce certain results".
- According to the Council of the European Community, direction 91/ 250/ CEE from 1991, the computer program is "an ensemble of instructions with the purpose of allowing the execution of functions by an information processing system named computer".
- In Romania, Law 8/1996 on Copyright and Connected Rights does not contain a definition of the computer program, but it specifies, however, which is the object of legal protection.
Attorney Dan Livescu

11. What is to be understood by "any expression of a program"?
The understanding of the expression used by the Romanian law in order to define the object of legal protection of computer programs, by means of copyright, presupposes the understanding of what a computer program really is, as well as of what its various expressions are. The main expressions of a computer program are: operating system, application program, preliminary conception material, source code, object code, mnemonics, microcode, manuals, "look and feel", visual displays, entry formats.
Attorney Dan Livescu, Mircea Badut

12. What does "operating system" mean?
The operating system is a program or collection of programs that ensures the basic functioning of the computer as well as an intermediary between the user and the computer. The computer cannot function without an operating system. It is the one that initiates and develops the logical connections between the hardware and the software of what, in everyday language, the users call "computer". Examples of operating systems : Microsoft Windows 2000, UNIX, Linux, MS-DOS.
Mircea Badut

13. What does "application program" mean?
Application programs are those programs that turn the computer into a tool that performs certain tasks and/or solves certain specific problems, such as: text processing, text editing, accounting, financial analysis, legal programs, planning, setting up data bases, message management, designing (architecture, engineering), survey and control of industrial processes, Internet "navigation", etc. Examples of application programs: Microsoft Word, Corel Word Perfect, Sun StarWriter, Lotus WordPro, Aldus Page Maker, Microsoft Excel, Lotus 1-2-3, Sun StarCalc, Adobe, Macromedia, Legis, The Legal Library, Lege4, Agenda Legislativa, Inventar Legislativ, Microsoft Internet Explorer, Netscape Navigator, etc.
Attorney Dan Livescu, Mircea Badut

14. What does preliminary conception material mean ?
Preliminary conception material represents the materialization, in natural language, of the idea and of the activity of analysis. This materialization may contain:
-the list of specifications and requirements that must be performed / ensured by the program conceived.
-a description of the ways of functioning and of solving the requirements of the program
-overall logical patterns ( in graphical, textual, symbolic or mixed form)
-particular logical patterns
-any technical notes (information regarding the conception/programming) with the role of preparing/controlling/running the activity of conceiving the program.
Any computer program is based on a preliminary conception material. It is the first step in conceiving the program.
Attorney Dan Livescu, Mircea Badut

15. What does "manuals" mean?
Manuals are essentially documents, printed or in digital form(files of the program, Internet sites, etc.) which contain information and instructions about the program they are attached to. The information in the manuals may have as object: the presentation of the program (destination, functions); the guidelines (a complete description of the utilization/exploitation ways), the assistance during the utilization of the program ("help"), other pieces of information about the program.
Mircea Badut

16. What does "source code" mean?
Source code is a fundamental intermediary expression in conceiving the program and it represents the translation of some parts of the preliminary conception material into a programming language, using the grammar rules of that language. It is not expressed in a natural language and it remains obscured for someone who is not familiar with Informatics, but it is coherent for specialists.
The source code is one of the most important expressions of a computer program, because it contains the details about the conception of the program and it is used by the programmer in order to subsequently modify or develop the program. It is a very well guarded secret by most of the companies which produce computer programs. The source code is undeniably protected by copyright and it is internationally used as evidence in order to prove a computer program genuine.
Attorney Dan Livescu, Mircea Badut

Nota: Mircea Badut este IT consulting engineer. A publicat numeroase carti in domeniul informaticii: Informatica pentru manageri, Editura Teora, Bucuresti, 1999; Bazele proiectarii cu MicroStation, Editura Albastra, Cluj-Napoca, 2001; Bazele proiectarii cu Solid Edge, Editura Albastra, Cluj-Napoca, 2002; Informatica in management, Editura Albastra, Cluj-Napoca, 2003; GIS - sisteme informatice geografice: fundamente practice, Editura Albastra, Cluj-Napoca, 2004. Calculatorul in trei timpi (Editura Polirom, Iasi, 2001, 2003).
De asemenea a publicat numeroase articole in reviste romanesti de profil (CHIP, Net Report, PC World, CAD Report, Hello CAD FANS, ComputerWorld, PC Report, PC Magazine, My Computer, Tehnica & Tehnologie).

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