Ηλεκτρονικοί υπολογιστές -- Λογισμικό -- Δίκαιο και νομοθεσία -- Ελλάδα Προστασία δεδομένων -- Δίκαιο και νομοθεσία -- Ελλάδα Computer software -- Law and legislation -- Greece Protection, Data -- Law and legislation -- Greece
Ημερομηνία Έκδοσης:
2007
Εκδότης:
Πάντειο Πανεπιστήμιο Κοινωνικών και Πολιτικών Επιστημών
Abstract:
According to Greek Law (articles 40-43 & 45 of L. 2121/1993), following the EU directive 91/250/EEC, computer programs are legally protected by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works . Both the Directive 91/250/EEC (art.9 par. 1 ) and the Greek Law (art. 45 par.1 L. 2121/93), explicitly refer to the complementary – parallel legal protection of software, under other possibly applicable legal provisions, such as patent protection. Said provision implies a future reformation – or current practice- of the European patent system. Computer programs are expressly excluded under current European legislation, from patent protection. In particular, according to art 52 par. 2 (c) of the European Patent Convention (EPC) , computer programs, among other human creations, are not patentable “as such”. As a result, the majority of the European countries, have similar legal provisions, whereas in the Greek corresponding Law [art 5 par. 2 (c) of L. 1733/1987] the phrase “as such” is not included. Nevertheless, “computer implemented inventions” can be, in fact, patented, though said practice has been criticised. Namely it is argued, that granted patents so far, are indeed invalid and of low quality, in lack of any technical contribution (inventive step). The European Committee, being aware of said practical approach of the subject matter, as well as taking into consideration that the software products market place is of fundamental importance for the economic growth of the Internal Market, has recently attempted to establish common rules for patenting software-related inventions, by way of a directve. On Wednesday July 6, 2005, the European Parliament, rejected the aforementioned- controversial- draft directive (648 to 14 votes), mostly due to the vigorous objection of the Free Software Foundation (FSF Europe). The FSF, as well as a large group of individual software developers and most of the SMEs in Europe, believe that broadening the scope of software protection by granting patent rights; will support the monopoly of leading companies in the IT market place, thus resulting- in the long run- to the restriction not solely of competition but of innovation as well. Additionally, mentioned group argues that consumer welfare is at stake. If competition is eliminated, as a result of “patent-disguised” barriers to entry the IT market place, prices of IT goods will raise, while consumers’ choice of goods will be narrowed down to a small spectrum of IT solutions. On the other hand, though the rejection of the draft software patent directive terminated the controversy, the recent reappearance of the Community Patent Regulation in the EU Agenda, is expected to include software patentability. In conclusion, the patentability of computer programs in Europe is currently obscure. Given the above, namely the undefined legal spectrum related to software protection, in this dissertation we shall attempt to locate the basis of the theoretical controversy (Section Α), then present the applicable Greek legislation as in force (Section B), as well as an alternative “quasi legal” software protection system, as demonstrates the business model of the “open source” software (also mentioned as FLOSS- Free/Libre/Open/Software), a common practice in the software developers community. In relation to the “de facto” patentability of software, we shall then examine the proposed legal regulation of the subject matter, under the Draft Directive provisions, in order to comprehend the reasons that lead EU to an attempt to adopt such a legal text, as well as the reasons of its rejection by the European Parliament (Section D). Finally, we argue that, although investing incentives in software, are undoubtedly patent related, the success of the FLOSS mechanism, with regard to the popularity of open source software, should drive the European legislation to an alternative, flexible legal protection system. The European Committee is fully aware of the rising demand for FLOSS products, which includes government institutions as well as private law companies . In view of the above, the FLOSS benefits, taking into consideration the technical stability and quality of the product, should be sufficiently subject to a “workable” legal system, both promoting innovation and protecting consumer welfare.
