|
A
BRIEF ANALYSIS OF THE BRAZILIAN SOFTWARE JUDICIAL CASES
Milton
Lucídio Leão Barcellos - Lawyer and Industrial Property
Agent
Partner of Milton Leão Barcellos & Cia. Ltda. Intellectual
Property Office
e-mail: milton@trademarks.com.br
 The
Brazilian Software Law (Law n.º 9.609/98) which treats with
intellectual property protection of software and the commerce of
software tells us that software has the protection that is given
to literary works. This Law was looking to give the same software
protection of the international laws and conventions.
But
the nature of software is quite different from the nature of literary
works, and the Brazilian Courts have had some problems in recogniging
and judging cases of software imitation because of it's different
nature and, at the same time, the problem of the legal equating
to literary works (Articles 1.º e 2.º of the Law n.º
9.609/98). This kind of problems brings different decisions in our
Courts.
So,
what realy can be considered as piracy or imitation of software?
There
is no doubt about the understanding that the idea or object of the
software is not protected by the Intellectual Property System (The
only exception is in case of trade secrets). We can say that the
software protection reaches many kinds of parts that compose it
and this protection does not obstruct the creation of similar software
"...when the creation is made by the functional characteristics
or the limitation to another form to express the same idea."(Article
6.º, III of the Law 9.609/98).
Analysing
only the structure and architecture of the software (its underlying
organization) and the main program contained in the software (the
instructions that are part of the software) - characteristics that
must be original (must have the personality of the author) to be
protect by the software law - we understand that we will have piracy
or imitation when the identities or similarities between two software
programs can not be explained by the technical necessities needed
to elaborate the software.
However,
in the piracy universe we have two kind of disloyal competitors:
First, we have the competitor that is not in the market as a direct
competitor of the author of the software, but simply makes copies
of the software for the under-law commerce, normaly called pirates.
In the secound place, we have the enterprises that are direct competitors
of the software owner in the market elaborating and developing software,
for example, the Microsoft and Apple. In the first case it is easy
to verify the illegal reprodution of software, since there is no
kind of modification in the software, just the copy, and a well-directed
lawsuit will leave almost no doubt to the judge's mind about the
illegal reprodution of the software.
But
in the secound case, when the competitors are at equal levels, for
example, Compaq and Hewlett Packard, there are a lot of other subjects,
including industrial spying, software modifications, employee changes
and others that complicate the analysis and the understanding of
the judge as to weather the kind of similarity is an infringement
of the software law and the authors' rights. Once the software is
created and the owner introduces it to the channels of commerce
it is possible that the competitor is not satisfied only to adopt
the idea and work to create his own software (procedure that the
software law allows), but instead starts to reverse-engineer the
software created by his competitor by making a copy of some program
lines or instructions and making some superficial modifications
to it look like original work and to seem like this illegal kind
of copy it is also protected by Intellectual Property Rights.
In
this last case, it is fundamental to pay attention to the details,
and it is important a good performance of the lawyer from the outset
of the lawsuit to guarantee good conclusions of the software expert
added to the judge's impression that will define the success of
the process. In fact the bigest judicial instability is in the exam
of this situation - that is the examination of how many identical
program lines have to exist between two software programs for the
judge to recognize the intellectual property rights of the original
versus the illegal copy.
For
this question, unfortunatly, there isn't conclusive answer, but
we have a leading case in the south of Brazil that has found that
it is not necessary for a complete copy of the software exist in
order to breach the intellectual property rights of the original.
This leading case recognized as illegal the partial copy of the
original program. To use the intellectual property rights against
unfair competitors it is important that the author or the titular
of the economic rights of the software register it at the Instituto
Nacional da Propriedade Industrial (Brazilian Industrial Property
Office). Registration is the best and most acceptable instrument
for proving the date of creation and determining who is the author
and who is the titular of the software's intellectual property rights.
Author:
Milton Lucídio Leão Barcellos
Lawyer and Industrial Property Agent
Brazilian Bar Association n.º 43707
Industrial Property Agent - API/BR n.º 0838
©
05/2001 All kind of reprodution must have the formal authorization
of the author.
Published
on the Les Nouvelles - Journal of the Licensing Executives Society
- September 2001 Edition - Les News Section - Page 2
Also published on the Brazilian Intellectual Property Association
- ABPI Magazine number 55 - December 2001 Edition - Page 41.
|
