Legal Aspects of the Information Society. - Free Technology Academy

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GNUFDL • 28 Intellectual property: authors' rights and copyright • In relation to the processofcreation of free software, this distinction is quite relevant for, as we have seen, free software is based on the incorporation, adding and modification of pre-existing work. The usual free software development model implies a substantial amount of contributors to the same application. Some authors provide new code (thus creating collaborative or collective works); others correct or improve an existing code (thus creating derivative work). Some authors also add a notice of authorship, while others do not. A key to the prevention of authorship conflicts in a free software development project may lie in the "contributive intent" of each author and in the proper management of intellectual property: – In the absence of an express agreement in terms of the conditions for collaboration, those managing software must rely on an implicit assignment of rights (which is not legally valid) or on the absence of claims by the contributing programmers facing any form of exploitation. – Good management of the process of collaborative creation requires an assignment or express license of rights by a specific agreement, such as a contribution agreement, or through the requirement that contributions should be made under a "project licence" or a compatible licence. • Regarding the useandexploitationoffreesoftware, this distinction between original and derivative work is also important. All free software licences allow for the modification (adaptation, translation, etc.) of applications and, therefore, the creation of derivative works. Some free software licences impose conditions on the redistribution and use of such derivative works (the GPL for instance), while others do not (the BSD). It is thus important to properly understand the definition of derivative work to know whether a development made based on a free application (for instance, integrating it, modifying it, using it, etc.) may be considered work that is derived from the original (and, therefore, to have respected the conditions of the licence with regard to modification and redistribution) or an original work using it without modifying it (an independent work, with its own licence). 4.2.5. Strictly-compensatory rights Strictly-compensatory rights are basically the right to participate in the resale price of plastic works (droit de suite) and the right to compensation for private copies. The right to compensation for private copies is held to be an inalienable right of the authors and artists, interpreters or performers, compensating the intellectual property rights not received for the reproduction of the protected works or services to be used exclusively privately by the copyist. The levy on blank CDs It is important to know the impact that the right to compensation for private copies due to the consequences that the application of a levy to virgin CDs will have for users of computer programs. In Spain, for example, the levy has been imposed to compensate the private copies of music that may be made by private persons. But the same CDs are
GNUFDL • 29 Intellectual property: authors' rights and copyright used to make security or backup copies of computer programs, leading to the argument that this solution is unfair, and the courts have on several occasions required the levy to be returned. These levies are managed by collecting societies, bodies like the PPL in the UK, SACEM in France, or SGAE in Spain, which we comment on below. 4.3. Other rights protected The legal framework also restricts certain "secondary" acts, in the sense that they are not direct breaches of exclusive rights, but indirectly affect them, associated with software, and may constitute intellectual property violations: • Putting into circulation a copy of a computer program knowing, or having reason to believe, that it is an infringing copy (this could arguably be extended, for instance, to companies basing their business on distributing P2P software expressly stating its use for sharing music files). • The possession, for commercial purposes, of a copy of a computer program knowing, or having reason to believe, that it is an infringing copy. • Putting into circulation, or the possession for commercial purposes of, any "means" the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of any technical device (a Technical Protection Measure, or TPM) which may have been applied to protect a computer program (e.g. rippers and cracks). In certain circumstances, the general regime of copyright law also punishes those who aid and abet the commission of a breach (e.g. by providing services of transmission, broadcasting or distribution of illegal works with knowledge); and the manufacture, marketing or distribution of articles destined for the illegal copying of protected works. Supplementary content Any infringing copy of a computer program and any illegal means for eluding technical protection mechanisms (TPM) shall be liable to seizure in accordance with the legislation of the Member State concerned.
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With support from the This book con
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