Computer law in central and Eastern Europe

EASTERN EUROPE INTELLECTUAL PROPERTY AND INFORMATICS NEWSLETTER COMPUTER LAW IN CENTRAL AND EASTERN EUROPE

L E G A L P R O T E C T I O N OF C O M P U T E R S O F T W A R E All the mentioned countries have adopted an explicit copyright protection for computer software. Completely new copyright laws have been adopted recently in Bulgaria (in 1993) ~ and in Poland (in 1994) 2. Hungary introduced effective criminal sanctions for copyright infringements in 19933, and amended its Copyright Act in 1994, as a result of the Hungarian - USA Agreement on the Intellectual Property Law4. In addition, an amendment of the Czech Copyright Act is being prepared, and it is expected that it will be adopted by the end of 1994. All these changes or intended changes have been inspired by and generally follow the EC copyright directives, and mainly the EC Software Directive. Nevertheless, there are many national differences between the mentioned countries. The principal existing differences which influence the distribution of computer products are the following: (a) Moral Rights. In Bulgaria, Hungary and Poland moral rights are limited in relation to software. In the Czech and Slovak Republics, Hungary and Poland moral rights apply fully to software products. In Hungary, a moral right of integrity is limited in relation to the employer-employee relationship. The only remedy available for the authoremployee is that he or she may require the omitting of his or her name from any copy of the work 5. In Poland, moral rights are not applicable for computer programs, with the exclusion of the rights of paternity 6. In addition the Bulgarian Copyright Act permits a waiver of moral rights, with the exception of the rights of paternity 7. A limitation of the moral right of integrity is discussed in the preparation of the draft amendment of the Czech Copyright Act. (b) Contracts. In Bulgaria it is possible to assign rights in copyright in a contract between author/rightholder and an

assignee, while in the Czech and Slovak Republics and in Hungary it is only possible to grant exclusive or nonexclusive licences to use a copyrighted work respectively8. In Poland, apart from the grant of licences, it is also possible to assign individual rights to use a work, but only with respect to kinds of exploitations (uses) of the work known at the time of signing the assignment 9. (c) Ownership of rights. In Bulgaria and Poland the employer is the exclusive owner of economic rights in software created by its employees, provided nothing else is agreed in a contract. In the Czech and SIovak Republics, and to a lesser extent in Hungary, employees still have substantial statutory control over the use of software created within the employment relationship ~°. In the Czech Republic, the draft amendment prefers the standard solution introduced already in Bulgaria and Poland. In relation to the works made on hire, the copyright laws in Poland and Bulgaria enable the commissioner to be considered as an exclusive owner of economic rights in an ordered work, provided it is validly agreed in a contract ~1. In the Czech and Slovak Republics and in Hungary, all the rights in a work made on hire are owned by the author(s), who grant rights to use the work to the licensee in a licence agreement. (d) Case Law. The first information technology cases have so far appeared only in the Czech and Slovak Republics and in Hungary ~2. TABLE 1: Legal protection of computer software in central an© eastern europe. A,CO~YmGHT PRO'RCTION - copv~t ml ~ A ~ -Co~W~W ~ u4mrr,e ~

rex c o p y ~ t a

I HIhl0'Off

~ ACt ~ ;~

I ACT

N OO

J

.

5 YES NO NO

I n

YES

1959

ACT 1 ~ 4

ACT 1 ~

~

1~3

NO

YES

NO

YES NO NO

YES

YES NO

YES

YES

NO

YES

YES

YES

pto~ecttm~

2 s p e c ~ ~les

- ~ow cha~ - 5outce c o d ~ - D~xu~t ~ n / ~

[C ~ l ~ h l e ~ l ~ ACt ~e93 V~3

man~ls

. RTl~)ar~fofYd ~ g n n~olerials A ~ I G e ~ e ~ p~inciple 3 soft~e Ow~m~m

YES/NO /NO YES ~s YES ~s ~s YES ~s YES ~s YES yES ~s

I

YES NO NO

I

YES/NO

I I I I I

YES/NO

I

YEs YES YES YES/NO Y~S/NO

, I I

I I

YEs YES YES YES YES

YEs/" NO

YES YES

YES YES/NO YES

AUTHOR AUTHO~ H~ I AUTHOR AUTHOR I AUTH~ ~LOYER I EMKOYE~I~MPLOVE£I £MPLO~P~MPLOYEE EMPLOYE EMPLOYER HC~ I AUTHOR I AUTHCI~ AUTHC~

NO YES/NO YES/NO YES YES YES

YES/NO YES/NO AUTHOR EMPLOY~M~OYE[

NO NO YES YES YES

YES YES/NO YES/NO

I AUTHOR i EMPLOYEE

- ReproduCtion YES YES YES YES YES YES - Transk~rh~/odop lot~on YES YES YES YES YES NO - D~Stribull~/F~ ral YES YES YES YES YES NO 7 P o l i ~ Copyngl~t ACt r e q u i r ~ '¢reotr~e a n d I n d M d u ~ c h t a c t ~ " f ~ the copyrightability of a work ff is not yet clear whether fhFs woo d m ~ n o ~KJht~ re~3~ir ~ t of ~ g 0 n ~ inl e g ~ prociice

ex¢,pl~=

~tel ol nw I~nlmotl pur Dq~,e 2ESpeOal ~ c o f f r~ut l ~o n - Back up c o p y - r~ght to obseq've, st~Jdy or t ~ t . Oe¢omplI~fi~/r~ ~dr~eefin g - U~/~f~d~d

~-S c m c hYES ll'~u~k: YEs YES YES

T N~mal ~1~

Yy%E~ S

YESNo

T l l m {~ ~

* 50

÷50

yES ~Es UM~D YES YES

yES YES YES

NO YES yES NO/NO NO

YES/NO YES YES YES YES

R I m l c l l ~ t / PrO¢~I ~ $ - Civil r e w i r e s : ~rn~ remedies . in~Jn~tve r ~ i ~ l,OTHIIt w m OF e ~ C n O N . p o t ~ t low Trad~orks - Unffa~ c o m p e f i l l ~ . Trod e ~ r ets/c~fidentlol i n f o ~

247

YES ~ YES YEs YES YES

YES H uYES ~ory YES YES NO

NoYES

*70 FI~OM JULY YES YES YES

YES

YES ~ oN ~O YES NO NO

YES S l o v ~YES hp~ YES YES YES

YES YES YES YES YES

YEsYES

YESNo

+~

÷~

+50

YES YES YES

YES YES YES

YES YES YES

YES

YES

YES

NO

YES

YES/NO

YES YES YES

YES YES YES

YES/NO YES YES YES YES

YES.

NO/YES YEs YES YES YES

:!;ii::l~ -O(:i.

.

.

.

l/t~:..............,,:.: .,"~.

.

.

~:;:~ . "L ~. .

.

.

::I {~, ",::~ i~i::;i:ii:::i:i:i;i:i~

.

TABLE 2: Legal Protection of Databases. P r o t e c t i o n through copyright COUNTRY Bulgoda Czech Republlc Hungary Poland Russla Slovak Republlc

Of "arrangement" of data

Of "selection" of data

Protection through unfair competition l a w Of "complloflon" of data

YES/" YES/* YES/"

YES/" YES/" YES/" YES/* YES/" YES/"

YES/" YES/* YES/" YES/" YES/" YES/"

YES/'"

YES/'* YES/'*

YES/"

YES/'*

YES/*

YES/'° YES/"*

YES/"

chart Is an outline summary only and st'
I* Provldecl that the selection, arrangement and/or compilation are 'odglnar 0e the resultor a "personal creation*). /*" Through unfalr Imltatlon and parasltlsm.

of sufficient guarantees.

LEGAL PROTECTION OF DATABASES There are no special database protection laws in the countries examined here (see Table 2 above). Limited protection of original selections, arrangements and compilations is available in all these countries by copyright law. In addition, unfair competition may be used to protect databases through the theory of parasitism and unfair limitation. Nevertheless, it is not entirely clear in which situations and to what extent unfair competition may be used effectively to protect against extraction of bare data from a database and subsequent commercial use of that data. As a result, databases do not benefit from an efficient level of protection in any of these countries, and there is great demand for the adoption of more extensive express protection in the national information technology industries.

TELECOMMUNICATIONS

Stalulol~/ftacnewoll( ~ulatev

TABLE 4: Data- Protection laws in central and eastern europe. i~eoe~ SI~ -~lal

I - Speclol statute for public prccureme~t 2- Protection fhtc~gh other means (e,g., C O ~ l a w rel;~llGtlo(3 of p u t ~ "i~l~le f )

lulgaila

CzechRe~Jbilc

ACT II0/19~4CC~L

Hun~

Poland

SlOvak Repu~il¢

NO I

LAWI~ ~V~N~D I ~ I

ACT I I0/I~':4 COLL

(3)

(3)

(3)

(3)

(3)

NO

NO

NO

NO

NO

f3)

(2)

(2)

(4)/'

(2)

(2)

(I)

(1)

(I)

(I)

(I)

P~

S~ovQkhp.blc

ACT I%'2

/"

ACT IC,~2

NO

AND Cr~L CCOE

~s

dole

YES

NO

YES

~ ~

Ileal pei-.l~ (. . . . . . . . . . . . . . . . . . . . . . dma I~ o d a l c l - p l ~ l l o n ;eguloto~ NO NO NO

Rlgllll'oll~l l l ¢ l l J l l l l ~

IIJIDIeCl

Ad
¢ll~a

dora

NO

NO d~ltYafOrp . . . .

NO

.o

NO

YES/"

NO

NO

YES/"

NO

YES/"

yES

NO

YES/"

NO

YES

YES

NO

YES

NO

NO

NO

NO

NO

i' on~ ~or ~ i v e dala / " sp~l~l data - prol~tion statute does not ex~ff Protec#on through ofh~ m ~ s . £specialN. M 23 24 of lhe Ctv~ Co~e, c ~ c m ~ g prot~tion of p ~ n ~ ~t~ests, Chopt~ 6 of the Counc# of Minisl~s D ~ r ~ conto~ng obligafions regarding collection of doto for electronic r~ord~ng

LEGAL PROTECTION OF SEMICONDUCTOR CHIP PRODUCTS With the exception of Bulgaria, all the countries discussed here have adopted special laws on the protection of semiconductors, in compliance with the EC Semiconductor Chip Protection Directive.

laws in central and eastern

A C T 1975

(2) UMffED

~

ACT 1992

. . . .

A ~ I v l C¢,lUlnlol ~ ~

COUNTRY Bulgaria Czech Republlc Hungary Poland Slovak RepubUc

4- Anothe~ s c ~ o n ~ ol tell¢oltm~m~aflonl 1- Ptlvatlzofion h a l Itar t e d 2- ~ has not starled 3- F~lvatlzatlon ha~l been c o m p l e t e d S~e¢lai ( C o d e ) P ~ v e . I - Re,aervedto pubic t ~ e c o m operators 2- App~cab~e to a~Jt e l e c o m c o ~ o n t e ~

data13rotcctica sfa'~'e

Czech ~ u ~ ¢

c09~e

~1~

body

I - Indepenc~e~t acth~ nkstrafire b o d y 2- Sen~ - independent adn~nlsflr at;ve body 3- D ~ t of I~¢11~ Publcoflon of offi¢l~ slate ~ I c y lo~ tels¢(~ImUn~ l h e i c o p e 0f lhe l l o t e monopoly I -NO state rrK~nopc~y 2- Stole monopoly exists Only for the e~tab,shment an~ o~e~aflon of pubffc telephonelOato nelxvo~s 3- N o n 4 ~ state momopc4y

from*work

- P r o t e c ~ through ome~ means (constffu~on, ~ e c t ~ laws. etc)

LAWS

In the countries discussed, the process of liberalization and privatization of telecommunications has started, but it is at a very early stage. National regulatory models are still being developed, and the current situation in this respect is rather unsystematic in all the countries. Early private service providers often have difficulties in obtaining the necessary telecommunications licences, in the absence of any published governmental strategy for the development of national telecommunications. All the regulatory powers are in the hands of the governmental ministries. There is a large scope for lobbying, as decisions on the granting of licences are made behind closed doors. In addition, public procurement laws exist only in draft form, which makes it difficult for companies to invest substantial efforts in bids for state orders in the absence TABLE 3: Telecommunications europe.

DATA PROTECTION LAWS Special data protection laws exist only in the Czech and Slovak Republics and in Hungary. Nevertheless, even in these countries the protection is not effective because of the absence of a data protection body. In the Czech Republic, the new amendment of the Criminal Code made it a criminal offence intentionally to misuse personal data without authorization ~3.

(2)

('2)

(2) UMITED

(2) UMITED

/ ' State m o n o p o l y for pro',Isio~ of ~tematlonal te~co~r~lunlcolfo~ ~ c e

(2.)

ImOCU~MENT ~ 1~ ~b

(2)

Special Statute NO

1992 1992 1993 1992

This chart is an outline summary only and should always be used in conjunction with specific legal advice. Chart compiled at May 1994 by Z. Loebl, LLM Information provided by Dr G. Sarakinov (Bulgaria), Z. Loebl, LLM (Czech and Slovak Republics), Dr G. Palos (Hungary) and Dr S. Soltysinski (Poland).

(2) UMffED

of p u b i c character.

248

SEI? - 0(7~"

'['t.-]E COMPt.i~.I:£R LAW AND S.ECURHY REPOI.~T

[1.994] 10 CI.$1~

CONCLUSIONS The biggest problems concerning Information Technology law and practice in Central and Eastern Europe seem to be the effective enforcement of the new laws in practice. Software piracy is still very widespread in the countries mentioned. Data protection is still not applied in practice, and a clear and efficient regulatory policy for telecommunications is still lacking. Nevertheless, these are problems which also appear in Western European and in other developed countries. All the countries discussed here have made substantial legislative efforts in the past few years to bring laws relating to information technology up to Western European standards. At present, further efforts are necessary to promote efficient enforcement and to assist as much as possible the development of national information technology industries and markets.

Edited by Zbynek Loebl Sipovic & Partners, law firm of attorneys, Zenklova 8180 00 Prague 8, Czech Republic Tel: 0422 66 31 06 04Yfax: 0422 66 31 15 50.

BOOK REVIEW BROADCASTING POLICY Broadcasting and Audio-Visual Policy in the European Single Market by Richard Collins, 1994, hard-back, John Libby, 177 pp., £22.00, ISBN 08619640S5. The background to this book was an investigation into the European satellite television channels, Eurikon and Europa, which were established in the 1980s by consortia of public service broadcasters under the aegis of the European Broadcasting Union. As a result of this work, the author discovered that no account of the ECs policies existed, and indeed that the story was complicated and more extensive than he had expected. There was no unitary Community policy, rather an intense struggle between rival policy visions and their institutional bearers, some of the most !ml}ortant of which had no specific responsibility for the

audio-visual and broadcasting sectors at all. The author modestly states that the book represents his preliminary ordering of a mass of primary Community documentation. The author concludes that the importance of the audiovisual sector is likely to remain undiminished and that its structure will remain complex with contradictory objectives among policy makers. He foresees that European broadcasting and audio-visual policy will continue to unfold and that other cultural industries will be brought into ever closer European union. Available from John Libby & Co Ltd, 13 Smith's Yard, Summerley Street, London, SW18 4HR, UK, tel: +44 (0)81 947 2777 or fax: +44 (0)81 947 2664.

249