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6th les European conference
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6th LES EUROPEAN CONFERENCE LICENSING IN EUROPE FOR
2002; HANDS-ON BUSINESS AND PRACTICE Licensing Executives Society, Benelux. Delft, 17-20 April 1994 Of the papers delivered in plenary session at this conference, two were of direct relevance to computers and law, and one series of workshop sessions was devoted to licensing and protection of software in Europe. These papers and events are the subject of the following review, Plenary session: Towards the new millennium: key software protection issues for the future, R G Broadie. Manager, Patents and Licensing, ICL UK. Mr Broadie did not in fact attempt to predict the immediate or more distant future, but confined himself to a brief retrospective of development in the computer industry over the past 10 years, a summary of the current situation, a statement that these trends will continue, and a review of current US and UK cases and European law. He emphasized that the main interest for the program developer is how to get a return on his investment through licensing, of which exercise the prevention of unauthorized copying is but an element, Easy - almost free - access to software via CD-ROMs and networks will make the use of technical (rather than legal) methods of protection more pressing. He noted the apparent convergence of US and EU law concerning compilations of fact, in Feist and the draft database directive, US and UK law concerning non-literal copying, in CA v Altai, Richardson v Fianders, and Ibcos v Poole, and US and EU law concerning rights to decompile, in the Software Directive and Sega v Accolade. The continuing divergence between the US and EU concerning patentability of computer programs was discussed. There is world convergence on uniformity of program protection, via the Berne Convention and the TRIPs Agreement. Plenary session: GATT-TRIPs and Licensing, Dr D O'Connor, President, LES Britain and Ireland
Dr O'Connor gave a lively and jargonfree summary of the implications of GATT/1-RIPs for licensing of intellectual property rights, and for the licensing profession. Computer programs are to be protected as literary works under the Berne Convention (but the USA has insisted on the exclusion of moral rights). Compulsory licences may be required for patents, and for topographies of integrated circuits, but governments are to ensure that there is adequate remuneration of the IP owner, and that there is provision for judicial review by a higher authority within the jurisdiction. He considered it essential that the Europeans should seek to ensure that less prosperous nations get their side of the quid pro quo embedded in GATT/TRIPs, i.e. that for agreeing to a general raising of the standards of protection of lP, they should have better accesstotechnologythrough transfer of it. The situation of small and medium size enterprises should be enhanced through GATT/TRIPs, as this Agreement seeks to reduce the costs of litigation (usually the perogative of those organizations that can afford it) and make the enforcement of IPRs easier. This was the last presentation of the conference, and provoked interesting additional comments from US participants on the likely future attitude of the USA to GATT/ TRIPs. Workshop sessions: Chairman, Thomas Vinje. 1. Software practice in Europe: member state implementations of the EC software directive and
The development of interoperable products under the EU software directive, M Colombe, Bull S.A., France. Mr Colombe considered the intricacies of Article 6 and the legal rules it provides to program authors to enable them to create interoperable products. He noted that the provisions of Article 6, included in the Software Directive following pressure from US suppliers, may soon be rendered obsolete (or at least outmoded) by rapidly changing case law in the USA. 4. Software protection and licensing in Europe compared with the US and Japan, T Vinje, Morrison & Foerster, Belgium and P Choy, Deputy Legal Counsel, Sun Microsystems. 3.
These two speakers referred to a number of points set out (among others) in a useful paper that they provided, in which European, US and Japanese provisions are listed in parallel. Of particular interest was their discussion of the failure of the defence in Sega v Accolade to present the best of their client's case at first instance (the 'fair use' defence), and the implications of this for US practice. 5. Licensing multimedia products: a multitude of problems, Dr P B Hugenholtz, Associate Professor of Law, University of Amsterdam. Dr Hugenholtz considered the complexities of multimedia, and its licensing, to be a continuum of the complexities already presented to licensors and
practical consequences, M Fla- licensees by its components, such as mee, Gerard & Partners, Belgium. music and video. He made reference to a This wasa useful summary, but it already Report to MITI by the Institute of has appeared in print in International Intellectual Property, Tokyo, which apComputer Lawyer in April 1993. patently is an exhaustive survey of the 2. Restricting the use of softwareproblems raised by multimedia in Japan. EC competition law and the He considered that 'one-stop licensing' software directive, T Heymann, for multimedia, although desirable, is Wessing, Berenberg-Gossler, Zimunlikely to be achieved merman, Lange, Germany. This conference was long on discussion In his paper presented to the workshop of the legislation and case law concernM Heymann discussed at some length ing software licensing, and short on the and with considerable authority the 'hands-on business and practice' proApplicability of Article 6 on acts cornmised in its title. mitred in third countries, such as Japan Gillian Bull or the USA, and the impact of the Report Correspondent 'McGill' cases on Article 6.
219
*
~ .............. ~ ~
l ~ ~
C O. q .t
~?
~'~ ~
:~ ~ ~"°~~ ~
!
........ o
6th LES EUROPEAN CONFERENCE LICENSING IN EUROPE FOR
2002; HANDS-ON BUSINESS AND PRACTICE Licensing Executives Society, Benelux. Delft, 17-20 April 1994 Of the papers delivered in plenary session at this conference, two were of direct relevance to computers and law, and one series of workshop sessions was devoted to licensing and protection of software in Europe. These papers and events are the subject of the following review, Plenary session: Towards the new millennium: key software protection issues for the future, R G Broadie. Manager, Patents and Licensing, ICL UK. Mr Broadie did not in fact attempt to predict the immediate or more distant future, but confined himself to a brief retrospective of development in the computer industry over the past 10 years, a summary of the current situation, a statement that these trends will continue, and a review of current US and UK cases and European law. He emphasized that the main interest for the program developer is how to get a return on his investment through licensing, of which exercise the prevention of unauthorized copying is but an element, Easy - almost free - access to software via CD-ROMs and networks will make the use of technical (rather than legal) methods of protection more pressing. He noted the apparent convergence of US and EU law concerning compilations of fact, in Feist and the draft database directive, US and UK law concerning non-literal copying, in CA v Altai, Richardson v Fianders, and Ibcos v Poole, and US and EU law concerning rights to decompile, in the Software Directive and Sega v Accolade. The continuing divergence between the US and EU concerning patentability of computer programs was discussed. There is world convergence on uniformity of program protection, via the Berne Convention and the TRIPs Agreement. Plenary session: GATT-TRIPs and Licensing, Dr D O'Connor, President, LES Britain and Ireland
Dr O'Connor gave a lively and jargonfree summary of the implications of GATT/1-RIPs for licensing of intellectual property rights, and for the licensing profession. Computer programs are to be protected as literary works under the Berne Convention (but the USA has insisted on the exclusion of moral rights). Compulsory licences may be required for patents, and for topographies of integrated circuits, but governments are to ensure that there is adequate remuneration of the IP owner, and that there is provision for judicial review by a higher authority within the jurisdiction. He considered it essential that the Europeans should seek to ensure that less prosperous nations get their side of the quid pro quo embedded in GATT/TRIPs, i.e. that for agreeing to a general raising of the standards of protection of lP, they should have better accesstotechnologythrough transfer of it. The situation of small and medium size enterprises should be enhanced through GATT/TRIPs, as this Agreement seeks to reduce the costs of litigation (usually the perogative of those organizations that can afford it) and make the enforcement of IPRs easier. This was the last presentation of the conference, and provoked interesting additional comments from US participants on the likely future attitude of the USA to GATT/ TRIPs. Workshop sessions: Chairman, Thomas Vinje. 1. Software practice in Europe: member state implementations of the EC software directive and
The development of interoperable products under the EU software directive, M Colombe, Bull S.A., France. Mr Colombe considered the intricacies of Article 6 and the legal rules it provides to program authors to enable them to create interoperable products. He noted that the provisions of Article 6, included in the Software Directive following pressure from US suppliers, may soon be rendered obsolete (or at least outmoded) by rapidly changing case law in the USA. 4. Software protection and licensing in Europe compared with the US and Japan, T Vinje, Morrison & Foerster, Belgium and P Choy, Deputy Legal Counsel, Sun Microsystems. 3.
These two speakers referred to a number of points set out (among others) in a useful paper that they provided, in which European, US and Japanese provisions are listed in parallel. Of particular interest was their discussion of the failure of the defence in Sega v Accolade to present the best of their client's case at first instance (the 'fair use' defence), and the implications of this for US practice. 5. Licensing multimedia products: a multitude of problems, Dr P B Hugenholtz, Associate Professor of Law, University of Amsterdam. Dr Hugenholtz considered the complexities of multimedia, and its licensing, to be a continuum of the complexities already presented to licensors and
practical consequences, M Fla- licensees by its components, such as mee, Gerard & Partners, Belgium. music and video. He made reference to a This wasa useful summary, but it already Report to MITI by the Institute of has appeared in print in International Intellectual Property, Tokyo, which apComputer Lawyer in April 1993. patently is an exhaustive survey of the 2. Restricting the use of softwareproblems raised by multimedia in Japan. EC competition law and the He considered that 'one-stop licensing' software directive, T Heymann, for multimedia, although desirable, is Wessing, Berenberg-Gossler, Zimunlikely to be achieved merman, Lange, Germany. This conference was long on discussion In his paper presented to the workshop of the legislation and case law concernM Heymann discussed at some length ing software licensing, and short on the and with considerable authority the 'hands-on business and practice' proApplicability of Article 6 on acts cornmised in its title. mitred in third countries, such as Japan Gillian Bull or the USA, and the impact of the Report Correspondent 'McGill' cases on Article 6.
219