Copyright is a Global Concern – Copyright Laws and Software License Compliance

By Jenny Schuchert

When Software Asset Managers are in the middle of a difficult audit, the underlying laws that influence these important tasks are often ignored. We even call it “software license compliance” and allow actions to be driven by the contract language without questioning the ownership rights derived from copyright law. Software Asset Managers understand license compliance processes, from receipt of a letter, through the development of an audit response team and to the final resolution of the audit. This approach to software compliance can lead to errors related to a specific country’s laws and to stagnant processes that do not reflect changes in copyright laws.

As with any innovation or creative work, software is considered intellectual property and subject to the same copyright laws as films, recordings and books. Copyright is the real backbone for software vendors, third parties and compliance agencies to demand payment for usage. The contract rarely references the applicable copyright laws because there is no need for it to be repeated in the contract unless the copyright holder is waiving one or more of their rights. The contract instead focuses on describing how the software can be used (or not used) for the specific deal.

This article focuses on copyright and software, but it is important to note that some software products are patented and follow a different set of rules. Open source is another twist that has broader permissions for changing the product and for usage. Copyright is the dominant applicable law that influences the rights to software.

Copyright law has a long history, providing protection for the “work of the mind” so that the creator benefits from others using what has been developed. These laws protect the innovator so that payment is made for use and if the product is used without permission or payment, the rights holder has legal remedies to enforce that payment or to restrict the use. In general, copyright law defines what can receive a copyright, what rights the copyright holder has and the length of the copyright. Controversy over copyright laws is ongoing and a frequent topic at global conferences. The major controversies are the sovereignty of laws per nation, what constitutes “fair use,” and the complexity introduced with digital media.

Sovereignty

Just like in the time of Charles Dickens, copyright laws allow authors to make their living from the ongoing publication of their works. Mr. Dickens worked within the framework of the laws in his own country. Today, copyright law is still unique by country with the notable exception of the European Union. Copyright laws are not at all the same across the globe, with significant diversity in definitions, breadth of support and enforcement techniques. For the Software Asset Manager, awareness of the nature of copyright laws and their uniqueness by country is an essential step to successfully managing software across the globe.

The United States of America’s copyright law is best known as the Title 17 of the US Code. In the updated version available from the Copyright office (http://www.copyright.gov/title17/), Title 17 is 13 chapters and has 13 appendixes containing laws related to title 17 such as the Digital Millennium Act and Title 18 — Crimes and Criminal Procedure, U. S. Code.

The Canadian Copyright Act was debated extensively in 2009 and the law was recently updated in April, 2010. Unlike US law, the Canadian version presents “moral rights” for authors. Separate from economic rights, moral rights describe other aspects of the author’s relationship with the work such as preserving rights when publishing anonymously.

India’s Copyright Act is dated 1957, but has been under revision as well, with new modifications to be presented to the Rajha Sabah (the upper house of the Parliament of India) this year.

These laws are only examples of the variety of approaches, length of history and severity of enforcement. Copyright is often in the news because the same copyright law that covers software also covers movies, books and music.

What about copyright holder protection between countries? For Charles Dickens, the inconsistency of copyright enforcement between nations led to lost income in the relatively new United States where his English copyrights were not enforced. To prevent this problem and encourage trade between nations, agreements are necessary that include protecting the copyright holders regardless of where the product is produced or sold. Trade agreements between nations often enforce copyright, although nations work hard to preserve their sovereign right to define copyright. The current meetings being held for an Anti-Counterfeiting Trade Agreement between nations such as the US, Canada, the European Union, Australia and Japan is stumbling over this same point.

Fair Use

As mentioned earlier, copyright law focuses on the copyright holder. What about defining legitimate uses without permission such as research, news reporting, commentary or teaching? The term “fair use” is in the United States Copyright Law to describe allowable uses without the copyright holder’s permission. Other countries use more restrictive language and use the term “fair dealing.” For Software Asset Managers, the question is important because of the steps taken to research and resolve problems in software. Actions taken by the organization in these situations are governed by these rights and are often used as the defense in civil suits. The description of these rights remains controversial and a source of international debate.

Digital Media

Software is a prime example of digital media, which, along with the internet, are the greatest source of edits to existing copyright laws. The lines are still being drawn as to what can be protected and what are the rights of all to use the internet. Hot buttons include the role of ISPs in reporting or removing illegal materials. The recent Digital Economy Act 2010 in the UK was particularly criticized for the lack of a safe haven for ISPs and a significant level of web censorship. The act and its future was an important campaign issue during the recent UK elections.

Another digital media issue is the use of technology to restrict access to the media so that illegal actions cannot be taken. Called DRM or Digital Rights Management, individual uses instead of business concerns are driving this issue. Is it permissible for an individual to move a downloaded song from one device to another when it is for personal use? If it is, DRM will be in the way. But DRM is seen as the best way to prevent piracy. The debate continues across the globe beginning with the right to do DRM and the basic question whether DRM should be protected by copyright law – or just the created material. US law already permits DRM in the Digital Millennium Copyrights Act. The World Intellectual Property Organization, an organization of the United Nations, also supports DRM in the WIPO (World Intellectual Property Organization) Treaty of 1996. WIPO is involved in trade negotiations between countries and is seen by many as the proper place for international issues to be worked out. The role of the WIPO comes up as a criticism of the ongoing ACTA (Anti-Counterfeiting Trade Agreement) negotiations which are separate from WIPO.

With the updates to copyright laws to reduce piracy on the internet and the current ACTA negotiations, copyright is in the news a great deal. Software Asset Managers need to be informed on at least the big picture of these issues to maintain a compliant environment. It is also appropriate for a Software Asset Manager to become actively involved, monitoring changes to insure that the balance between the rights of copyright holders and the rights of use are maintained. The outcry in the UK over the Digital Economy Act is a good example of informed voices changing the likely life and implementation of that Act. The daily activities of the Software Asset Manager are greatly influenced by copyright laws and a working understanding of a larger definition of compliance is an important perspective to have.

About the Author

Jenny Schuchert is the Content Director for IAITAM