студентка юридичного факультету
Львівський національний університет імені Івана Франка
м. Львів, Україна
The 21st century is a century in which the development of society is based on the knowledge and results of creative activity of a person in the cultural, technical, economic spheres. Therefore, intellectual property today plays a much greater role in human life than in the entire history of mankind. A special place among the objects of intellectual property is the computer program, which in the era of information technology is one of the main strategic resources of both the state as a whole and its individual components. The dualistic legal nature of the computer program, due to the impossibility of its practical use for the purpose of extra-technical solutions and the similarity of its creation to traditional objects of copyright, as well as its complexity and versatility, became the basis for the emergence in the legal science of different approaches to determining the legal model of protection the specified intellectual property right. Issues of legal protection of the computer program were the subject of research at various stages of its development, especially in the 80-90s of the twentieth century, which is associated with the intensive development of the object of protection [9, p.279].
The Computer Programs Directive is characterized by a number of fundamental principles aimed at achieving a certain unity of approaches to legal regulation in this area in the EU Member States. Many of the provisions of this document are legal novelties, which make a prominent contribution to the unification and harmonization of the legal protection of intellectual property in the Member States of the European Union [6, p. 253].
In accordance with the provisions of the Computer Programs Directive, copyright laws within the meaning of the Berne Convention for the Protection of Literary and Artistic Works of 1886 will be protected in the EU Member States. countries in the world, including the United States, where computer software is subject to copyright law, not patent or sui generis law. This approach has caused ambiguous assessment in foreign researchers specializing in intellectual property [1, p. 627].
Legal protection, in accordance with the provisions of the Computer Programs Directive, applies to a computer program, expressed in any form and by any means. The ideas and principles underlying any element of a computer program, including ideas and principles of its interface, are not subject to copyright in accordance with the requirements of the Computer Programs Directive. It should be noted that according to the Computer Programs Directive, the term "computer programs" itself includes their preparatory material and the audiovisual mappings and interfaces they generate, which are also subject to legal protection [3, p.432].
The Computer Programs Directive is the only criterion for the security of a computer program to propose its originality, understanding it in the sense that a computer program is original if it is the result of the creative activity of the author. No other criterion applies under the imperative rule of the Directive itself. This provision is extremely important in view of the fact that completely different criteria for the security of computer programs were foreseen before the adoption of the Computer Programs Directive in the EU Member States. Thus, according to the legislation of Germany, the so-called tests of quality and aesthetics of a computer program were used to determine the safety of computer programs, which, accordingly, created certain difficulties in the way of recognition of its safety [4, p. 357]. Now, under the criterion of originality of a computer program, the legal norms of the EU Member States are harmonized. However, the criterion of originality of a computer program in the text of the Computer Programs Directive itself is rather vague and incomplete, which can cause some difficulties in the practice of its application.
The Computer Programs Directive also establishes another rather important legal presumption in the area of legal protection of computer programs [5, p. 142]. In cases where the computer program is created by the employee in the order of performance of duties or at the request of the employer, the property rights for the computer program belong to the employer, unless otherwise stipulated in the contract between him and the author.
When referring to copyright holders in the field of the legal protection of computer programs as a whole, the Computer Programs Directive applies to them all natural and legal persons protected by the national copyright law of the Member States of the European Union. We believe that this category should include the author of the computer program, its heirs, as well as any natural or legal persons who possess exclusive property rights obtained by law or contract [7, p.705].
The Computer Programs Directive sets out in detail the scope of the exclusive rights of the right holder. According to the provisions of the Directive, the exclusive rights of the right holder include the right to carry out or authorize such actions. First, the permanent or temporary reproduction of a computer program by any means and in any form, in part or in full. Where actions such as downloading, displaying, transmitting or accumulating a computer program are a condition of such reproduction, these actions must be authorized by the copyright holder. Secondly, the translation, adaptation, arrangement and any other restructuring of the computer program, as well as the reproduction of its results, without prejudice to the rights of the person who changed the program (meaning the person who legitimately owns a copy of the computer program or has legitimately contributed changes). Third, any form of communication, including rental, of the original computer program or copies thereof. However, in this case, the Computer Programs Directive introduces a significant restriction on this right, known in the doctrine as the "principle of exhaustion." The first sale of a copy of a computer program in the EU Member States to the right holder or with his consent shall exhaust the right to distribute the copy in the EU, except for the right to control the subsequent rental of the program and its copies[4, p. 357].
In concluding our analysis of the process of harmonization and harmonization of the legal protection of computer programs in the European Union countries, we note that the EU Council adopted in this area sets a high bar in the legal protection of computer programs and creates certain prerequisites for further positive legal progress in the said sphere in the context of the further development of information technologies and global information networks, which largely operate on the basis of or using computer programs.
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