What is the legal status of software programs?
The legal status of software programs is marked by ambiguity, partly due to the lack of clarity in the regulations governing it (at the national level, the concept of a software program is not even defined) and partly due to the lack of harmonization between national and European legislation. In the following sections, we will first provide a brief overview of the relevant legislation, both national and European, then analyze the national framework. Finally, we will attempt to offer the reader a concise guide outlining the steps necessary to achieve optimal protection for a software program.
What are the legal provisions?
At the national level, Law 8/1996 on copyright and related rights is significant, specifically Chapter IX, Articles 73–82, which explicitly regulate how copyright for software programs is obtained. Additionally, Law No. 84 of April 15, 1998, might prove useful for certain software products (those offering innovative solutions to complex technical problems). Furthermore, Government Ordinance No. 25/2006 designates O.R.D.A. (Romanian Copyright Office) as the administrator of the National Registry of Software Programs (R.N.P.C.).
At the European level, Directive 2009/24/EC of the European Parliament and Council, dated April 23, 2009, on the legal protection of computer programs, is of interest. However, it has yet to be transposed into national law. This directive repeals Directive 91/250/EEC of May 14, 1991, which was transposed into national legislation via Law 8/1996.
How are software programs protected under copyright law?
Software programs are primarily protected through their associated copyright, in a manner similar to literary works under the Berne Convention. A software program is a complex construct that can include diverse elements from different disciplines, making it essential to specify which aspects are protected under copyright law.
What does copyright protect in a software program?
Article 73 of Law 8/1996 is illustrative in this regard. According to paragraph (1), the protection of computer programs includes any expression of a program, application programs, and operating systems, expressed in any language, whether in source code or object code, preparatory design material, and manuals. As an exception to paragraph (1), paragraph (2) specifies the elements not protected: ideas, procedures, methods of operation, mathematical concepts, and principles underlying any component of a computer program, including its interfaces.
These notions have been further refined by the case law of the European Court of Justice. For instance, in case C-393/09, the Court ruled that a software program’s user interface does not fall under the concept of “expression of the program,” and thus does not enjoy copyright protection. However, the graphic interface can be protected separately if it exhibits originality as the author’s creation. While this ruling is sound, nuances may be necessary, particularly for certain software like video games, where the graphic interface plays a crucial role in the user experience.
What elements are not protected under copyright?
According to Article 8, paragraph (1) of Law 64/1991, “plans, principles, and methods in the exercise of mental activities, in games, or in economic activities, as well as computer programs,” are not considered inventions. However, paragraph (2) specifies that these provisions do not exclude the patentability of objects or activities mentioned in paragraph (1) unless the patent application or invention patent explicitly refers to such objects or activities as such. Therefore, while software programs cannot be patented in isolation, they can be protected under patent law if they provide specific functionality, resolve a technical problem, and are incorporated into an independent product.
How is the legal protection of software programs achieved?
Given this legislative landscape, the best option for legally protecting a software program is registration with O.R.D.A. (Romanian Copyright Office) in the R.N.P.C. (National Registry of Software Programs). This registration is not merely optional but an obligation for the copyright holder. While registration does not establish rights—copyright is acquired through the mere development of the software by its author—it ensures enforceability against third parties and is a prerequisite for distributing, importing, or renting software programs. Failure to register may result in fines ranging from 2,000 to 10,000 RON.
What other protection methods are used in the software domain?
In the field of software producers, it is customary to register the names of programs as trademarks, in addition to the trademark associated with the producer itself. However, this registration is in no way related to the functionality of the program but only ensures the uniqueness and distinctiveness of its name. Moreover, the Court of Justice of the European Union has also stated that “to admit that the functionality of a computer program can be protected by copyright would mean allowing the possibility of monopolizing ideas, to the detriment of technical progress and industrial development.” This solution may create issues, especially for producers who develop new software functionalities that will later be adopted by the market, particularly by producers with more resources, who will be able to ensure a better implementation of the same functionality. Nevertheless, the solution must be accepted, as competition among producers is healthy, with the main beneficiaries being users.
In conclusion, the protection offered to software programs is limited to their means of expression, without extending to the effective implementation of the ideas and functionalities that underpinned the development of the software. Therefore, important aspects such as innovative graphic interfaces, new functionalities, ideas, and principles lack legal protection.
Short Guide for the Legal Protection of Software Programs
Below, we will outline the steps that an author must follow to obtain the optimal legal protection permitted by law for the software program developed by them.
1. Registering the program with ORDA, in the RNCP
- 1. Complete Form 1 (https://orda.ro/wp-content/uploads/2020/04/REGISTRE_NATIONALE/RNPC/COMERCIANTI_RNPC/F1%20Inregistrare%20in%20registre.xls), accompanied by a copy of the registration certificate from ORC. Registration using this form is valid for 1 year.
- 2. Complete Form 8 (https://orda.ro/wp-content/uploads/2020/04/REGISTRE_NATIONALE/RNPC/COMERCIANTI_RNPC/F8%20Inscrierea%20programelor%20pentru%20calculator.xls), which ensures the actual registration of the program in RNCP, valid for the entire duration of the software program’s exploitation. The following must be attached to this form:
- A sworn statement from the copyright holder;;
- A copy of the license granted to users in Romania (represents the licensing contract that regulates how users are allowed to use the software program);
- A copy of the software program.
2. Registering the program’s name as a trademark with OSIM
- This process is relatively simple; trademark registration is an entirely online procedure, through completing the interactive forms at https://osim.ro/e-osim-ro/cereri-online/cerere-de-marca/
– The trademark name must be unique and distinctive, a simple description of the software product is not sufficient..
See also:
