Software and the Copyright Act

Software Protection

The EC Software Directive (91/250/EEC) has been implemented in the Netherlands in the Dutch Copyright Act. The act provides that computer programs are protected as a copyrightable work. A computer program is protected if it is original (ie, it is the author's own intellectual creation). The act extends its protection to works in written form even if they lack any original character. The act explicitly states that computer programs are not considered to be works in written form.

Copyright in a computer program expires 70 years after the death of the author, or 70 years after it was first published if the author is not an individual.

Copyright Ownership

Under the Copyright Act the author of a work is taken to be the copyright owner, subject to the following exceptions:

• If a work consists of different parts created by different authors, each author obtains copyright over the part created by him or her, while the copyright for the total work will be owned by the person who supervised its creation;
  
  
• If a work was created from under the management and supervision of a third party, and based on his or her design, this third party owns the copyright; and
  
  
• If the work was created by an employee in the course of his or her employment, and the creation of such work formed part of his or her tasks, then the copyright is owned by the employer.

Restrictions

The Copyright Act grants the copyright owner the exclusive right to make the work public and to copy the work. The act provides that the loading, displaying, running, transmission and storage of a computer program is to be considered as copying.

The act provides the following exceptions to the copyright owner's exclusive right to copy the work:

• The program can be copied by the lawful acquirer if this is necessary for the program's intended use, unless agreed otherwise. It is explicitly stated that copying done by the lawful acquirer when loading, displaying or correcting errors cannot be restricted by agreement;
  
  
• The lawful acquirer of a computer program can make a back-up copy if this is necessary for the program's intended use; and
  
  
• The person who is authorized to use the program is also entitled to study, test and observe it in order to analyze the underlying ideas and principles.
  

In addition, it is not considered to be an infringement for the lawful carrier to copy and decompile a computer program if this is the only way to obtain information necessary to make the program interoperable with other computer programs, provided that:

• the information necessary to achieve interoperability was not readily available to the lawful acquirer;
  
  
• the acts are confined to the parts of the original computer program that are necessary to achieve interoperability; and
  
  
• the information obtained is used only to achieve the interoperability of the independently created program and (i) is not given to others, except when necessary for the interoperability of the independently created computer program, (ii) is not used for the development, production or marketing of a computer program that cannot be regarded as a new, original work, and (iii) is not used for other copyright-infringing acts.

Special Protection Measures

The Competition Act provides that anyone who wilfully offers openly for distribution, has available for distribution, has available with the intention to import into the Netherlands or keeps out of pursuit of gain, an object exclusively designed to remove or evade technical measures for the protection of a computer program without the authorization of the author or his or her assignee, will be punished with imprisonment for up to six months or a fine of up to Fls25,000, or Fls100,000 in the case of a corporation .

For further information on this topic please contact Ruprecht Hermans or Eliane de Vilder at NautaDutilh by telephone (+31 20 541 4940) or by fax (+31 20 541 4700) or by email ([email protected] or [email protected]).