Permitted use of protected works
Valid IP rights limits
Comment


The 5 April 2021 US Supreme Court of Justice ruling in the Google v Oracle copyright infringement case introduced various interesting issues regarding the validity of the fair use doctrine in US copyright law applicable to software. This article analyses how an Argentine court may have ruled on the case if the claim had been instituted in Argentina, in light of local regulations and court precedents.

Permitted use of protected works

The fair use doctrine stems from common law countries, where limitations to copyright are not subject to a numerus clausus structure, as is the case in the continental legal system of Latin American countries. In these countries, the exceptions to ownership rights are limited and subject to a restrictive interpretation.

Argentina adheres to the continental European IP system. Although there is no fair use rule, the Intellectual Property Law (IPL) (11,723) provides for different permitted uses of protected works. There are limitations to copyright of the following:

  • right of quotation;
  • political or literary speeches and lectures on intellectual matters;
  • information of general interest;
  • news;
  • certain uses of works for educational purposes;
  • performance or interpretation in concerts, auditions and free public performances by musical organisations that belong to government institutions;
  • reproduction and distribution of scientific or literary works in specific systems for blind people and individuals with other perceptual disabilities; and
  • software back-up.

These are the only cases that the IPL provides and therefore must be construed restrictively.

Valid IP rights limits

The so-called 'three-step test' provided for by Article 9(2) of the Berne Convention has not been incorporated into Argentine legislation and nor it is commonly invoked in Argentine judicial decisions. This rule refers to the requirements for valid IP rights limits – namely, that:

  • the use must be restricted to certain exceptional cases expressly defined in the law;
  • the use or reproduction must not conflict with a normal exploitation of the work; and
  • the use or reproduction must not unreasonably prejudice the legitimate interests of the author.

Comment

In light of the above, it is likely that an Argentine court ruling would have differed from that of the US Supreme Court. The fair use doctrine has not been recognised in Argentine law and, in turn, the limitations to copyright provided for in Argentine law do not seem to cover a situation similar to that described in this case. Further, it would be difficult to rely on an extensive or analogical application of the limitations to copyright, considering that these must be construed narrowly in Argentina.

Therefore, for software, which is protected under the IPL, the use of programming lines for commercial purposes by a competitor may constitute infringement of the owner's intellectual property.

For further information on this topic please contact Juan Carlos Ojam, Mariano Peruzzotti or Santiago Durañona at Ojam Bullrich Flanzbaum by telephone +54 11 4549-4900 or email ([email protected], [email protected] or [email protected]). The Ojam Bullrich Flanzbaum website can be accessed at www.ojambf.com.