A STUDY OF CONFLICTS IN SOFTWARE PROTECTION IN THE EUROPEAN COMMUNITY

AUTOR(ES)

Tarcisio Queiroz Cerqueira

DATA DE PUBLICAÇÃO

1996

RESUMO

The task of providing adequate legal protection to computer software is a complex one. A computer program cannot be properly regarded as a literary work, nor is it a functional, or utilitarian product; there is also a controversy as to whether it is to be considered a product or service. Some parts of a program are written and easily fit into the copyright framework, whereas other parts are nonliterary elements and can be protected by patents, trade secrecy, contracts or sui generis legislation. Some kinds of computer programs are detached from their media while others can hardly be separated from the microprocessor in which they are embedded. In some software contracts, computer lawyers will include statements that software cannot be created error free. A large number of lawyers, judges, legislators and law commentators do not completely understand the sophisticated technology and terminology of computer software, even when it extends to simple features. The result is a weak and conflicting regulation. Statutes are unclear and old fashioned, and court decisions are confused. Some important aspects of software protection are not entirely a rationalmatter, perhaps because a computer program constitutes a new entity in our world, independently of which system of law we are under, and clearly because it is something highly valuable, highly powerful, easy to reproduce, capable of bringing fortunes in a short time, and peculiar, even strange, under the light of a group of traditional regulations - such as the Berne and the Patents conventions, and the principles of copyright and authors rights. Any new attempt to regulate computer programs would have the same effect and could produce even more friction. The solution, rather than stop applying copyright or conceiving a special body of legislation, is: a) in an open-minded attitude, to accept computer software as it is and change copyright understanding, to update laws and create means of accompanying and implementing regulation in such a way as to keep pace with the feverish development of information technology, and b) to improve the technological knowledge of people involved.

ASSUNTO(S)

direito contratos de software computer programs software contracts proteção e comercialização de tecnologia de software computer software law direito de informática legal protection propriedade intelectual de novas tecnologias software protection

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