Internet Copyright law

Computer programs Computer programs are created as sequences of instructions expressed as words and mathematical symbols Individual features Originality vs standard solutions Human work Intelectual input

"Model Provisions on the Protection of Computer. Software".1977 WIPO Instruction sent to goverments of member countries – USA included computer programs into US Copyright Act § 101. Copyright Act stanowi, że „computer program is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result”.

Programming languages

Programming languages Source code – mathematic symbols, words, instructions to machines Binary code 0 – 1

Content generated by the program on the screen - graphical user interface or GUI Graphical user interface is the interface interaction, allows for communication between the computer program and the user. Art. 10 /1 TRIPS Agreement, computer programs, in both source code and object code, are protected as literary works under the Berne Convention.

European Court of Justice decision of 22 December Case C-393/09 Graphic Interface protection

1) Graphical user interface does not constitute a form of expression of a computer program within the meaning of art. 1 paragraph. 2 Council Directive 91/250 / EEC of 14 May on the legal protection of computer programs and can not benefit from the protection conferred by copyright on computer programs under this Directive. However, if the interface is an expression of his own intellectual creation of its author, he can use the provided copyright protection as a work in accordance with Directive 2001/29 / EC of the European Parliament and of the Council of 22 May On the harmonization of certain aspects of copyright and related rights in the information society.

2) A television broadcast graphic user interface does not constitute communication to the public of a work protected by copyright within the meaning of art. 3 paragraphs. 1 Directive 2001/29.

The Copyright Directive (officially the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, also known as the Information Society Directive

Rights of author in Directive: 1.reproduction right (Article 2) 2. right of "communication to the public 3. right of making available to the public (Article 3): covers publication and transmission on the internet. 4. Related right to authorise or prohibit any form of distribution to the public by sale or otherwise (Article 4) The 2&3 names for the right derive from the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (Arts. 8 & 10 respectively).WIPO Copyright TreatyWIPO Performances and Phonograms Treaty

1994 – Poland Copyright act, – 2000 special provisions referring to computer programs protection

Article Computer program shall be subject to protection as literary works, unless the provisions of this Chapter provide otherwise. 2. Protection accorded to computer programs shall cover all forms of expression thereof. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, shall not be protected. 3. Unless the contract of employment stipulates otherwise, the author's economic rights in a computer program created by an employee while performing of his/her duties under the employment relationship are owned by the employer.

4. The economic rights in a computer program, include the right to do: 1) the permanent or temporary reproduction of a computer programs in full or in part, by any means and in any form; reproduction for its loading, displaying, running, transmitting and storing, consent of the rightholder shall be required for such acts; 2) the translation, adaptation, arrangement or any other modification 3) the public dissemination, including letting for use or rental, of a computer program or a copy thereof.

Poland Copyright Act Art.75 – free use scope of computer program Article 77(2). The protection granted to data bases possessing the features of a piece of work shall not cover computer programs used to develop or operate data bases accessible via electronic means.

Special provisions on computer programs presented in Chapter 7 of the Act do not regulate the producer’s sytuation

Art.77 Copyright Act Poland Authors of computer programs do not benefit from moral right protection in fields covered by art. 16 points 3-5: the right to the integrity of the content and form of the work and properly used the right to decide on the release of the first song the audience the right to control the manner of use of the work

WIPO treaties WCT - WIPO Copyright Treaty Genewa 1996 Article 3 Application of Articles 2 to 6 of the Berne Convention Contracting Parties shall apply mutatis mutandis the provisions of Articles 2 to 6 of the Berne Convention in respect of the protection provided for in this Treaty.Articles 2 to 6 of the Berne Convention Performances and Phonograms Treaty WPPT No derogation from existing obligations in Rome Convention 1961 Performers : exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or wireless means in Internet

WCT Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression. 4 Article 2 of the Berne Convention 4

Electronic services in UE development of electronic commerce information society European citizens and operators need to take full advantage, of the opportunities afforded by electronic commerce without consideration of borders internal market

legal obstacles vs legal certainty Using unindentified content – dissemination of somebody else’s work Copyright infringement – moral right (to decide wheather to publicate) and economical rights The free movement of information society services freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms

Internet services service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) the storage of data, and at the individual request of a recipient of a service copyright law is tort law too

Copyrights tort the intention to infringe is not essential in copyright law, and so, the defence of an absence of knowledge or intention to infringe has been denied; although concern of the harshness of the strict liability principle has at least been identified Publisher Speaker Information content provider

Directive vs copyrights Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) Polish legal act: ustawa z dnia 18 lipca 2002 r. o świadczeniu usług drogą elektroniczną (Dz. U. z 2002 r. Nr 144, poz. 1204).Dz. U. z 2002 r. Nr 144, poz. 1204

No general obligation of Internet content filtering in EU HADOPI France cutting off access to the Internet Internet users, who are three times informed about the infringement of their copyright

Digital Millennium Copyright Act USA 1988 implements two 1996 treaties of the (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (known as digital rights management or DRM)digital rights management while limiting the liability of the providers of online services and other intermediaries for copyright infringement by their users

Art. 512 (a) DMCA - USA TRANSITORY DIGITAL NETWORK COMMUNICATIONS service provider shall not be liable for monetary relief, or, except as provided in subsection for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider,

or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if (1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and (5) the material is transmitted through the system or network without modification of its content.

Mere conduit Service of Internet provider initiated by user Question of liability of Internet provider for infringements or illegal content being transmited by his services

Mere conduit transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission.

include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. This regulation shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement.

Caching transmission in a communication network of information provided by a recipient of the service, service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients of the service upon their request, on condition that:

caching (a) the provider does not modify the information; (b) the provider complies with conditions on access to the information; (c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry… (e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.

Hosting storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. Above shall not apply when the recipient of the service is acting under the authority or the control of the provider.