Protection of Computer Programs

The protection of computer programs, the regulation of which has been the first European copyright Directive847 _{and which has been highly controversial issue, is reflected in Georgian}

copyright legislation as well. Georgian law on copyright and neighbouring rights implemented the initial version of the computer program Directive, which has been amended by the new Directive in 2009. However, the basic norms implemented in the Georgian law stayed intact also in the Directive, regardless to the amendment of 2009. The first and mostly important requirement of this Directive is to “protect computer programs, by copyright, as literary works”848_{. This equalization of computer programs to the literary works}

has been a subject of controversy because of the obviously different characteristics of these two subject-matters.849 _{However, Georgian legislator shared the attitude towards computer}

843 _{Art. 23.1, Law of the Republic of Moldova on Copyright and Related Rights.} 844 _{Art. 28.3, Law of Ukraine on Copyright and Related Rights.}

845 _{Art. 1281.1, Civil Code of the Russian Federation.} 846 _{Tritton, p. 515.}

847 _{Directive 91/250/EEC.}

848 _{Art. 1.1, Directive 2009/24/EC.} 849 _{Walter, in: Walter/Lewinski, p. 93.}

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programs equalized to the literary works and reflected it in the text of the law850_{. In this}

regard Georgian legislation followed the examples of the prominent copyright legislations such as German Copyright Act,851 _{or Italian Copyright Law,}852 _{where the computer programs}

are equalized to the literary works. This approach is commonly shared in the copyright laws of other post-Soviet countries as well, but the manners of equalization are slightly different: in Armenian853 _{and Azerbaijani}854 _{copyright acts, like in Georgian copyright law, literary and}

scientific works are indicated in one sentence (according to German Copyright Act855_{), while}

in Moldovan856 _{and Ukrainian}857 _{copyright acts, as well as in Russian Civil Code,}858 _the

computer programs and literary works are indicated in separate sentences.

The definition of the term ‘computer program’ is not provided in the EU Directive. This has been justified based on an argument that, due to the dynamic development of the technologies, such definition would become outdated.859 _{However, in Georgian law computer}

program is defined as “a set of instructions expressed in words, codes, schemes, or in any other machine-readable form, which activates a computer in order to bring forth a particular result”860_{. Similar definitions are also provided in the copyright acts of Azerbaijan,}861

Moldova,862 _Ukraine,863 _{and Russian Civil Code}864_{. Only the definition provided by the}

Armenian copyright act is slightly different, defining computer programs as “programs

850 _{Art. 6.1.a, Georgian Law on Copyright and Neighboring Rights.} 851 _{Art. 2.1.1, Urheberrechtsgesetz.}

852 _{Art. 1, Disposizioni sui diritti connessi all'esercizio del diritto d'autore, Legge 22 aprile 1941, n. 633.} 853 _{Art. 2.4.a, Law of the Republic of Armenia on Copyright and Related Rights.}

854 _{Art. 6.1, Law of the Republic of Azerbaijan on Copyright and Related Rights.} 855 _{Art. 2.1.1, Urheberrechtsgesetz.}

856 _{Art. 7.2.a, Law of the Republic of Moldova on Copyright and Related Rights.} 857 _{Art. 8.1.3, Law of Ukraine on Copyright and Related Rights.}

858 _{Art. 1225.1.2, Civil Code of the Russian Federation.} 859 _{Bentley, in: Dreier/Hugenholtz Concise Copyright, p. 216.} 860 _{Art. 4.j, Georgian Law on Copyright and Neighboring Rights.}

861 _{Art. 4, Law of the Republic of Azerbaijan on Copyright and Related Rights.} 862 _{Art. 2, Law of the Republic of Moldova on Copyright and Related Rights.} 863 _{Art. 1, Law of Ukraine on Copyright and Related Rights.}

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expressed in any form, including preparatory design materials for their creation”865 _{which is}

similar to the provision of the German Copyright Act866_.

Furthermore, Georgian legislation also implemented the regulations of the EU Directive concerning the economic rights in computer programs. According to these regulations, the author of a computer program is entitled to do, authorize, or prohibit “reproduction of a computer program by any means and in any form, in whole or in part; such reproduction shall be subject to authorization by the author if this is necessary for loading, displaying, running, transmitting or storing of the computer program”867_{. This repeats the wording of the}

EU Directive868 _{with slight changes. Besides that, the author of a computer program can also}

do, authorize, or prohibit “translation of a form, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof without prejudice to the rights of the person who alters the computer program”,869 _{which also repeats}

the regulation of the EU Directive.870 _{The initial version of Georgian law also included the}

component of distributing the program or its copies, according to the Directive,871 _{but this}

provision was repealed by the amendment of 03/06/2005.

Georgian law implemented the regulation of the EU Directive concerning the limitations on the rights of computer program owners as well. According to this regulation, a person who lawfully owns a copy of a computer program is entitled “to make alterations to the computer program or database where they are necessary for the functioning of technical facilities of the user, as well as to carry out any act related to the functioning of the computer program or database, including loading and storing in the computer memory (for one computer or one network user), as well as correction of apparent errors, unless the copyright agreement

865 _{Art. 35.1, Law of the Republic of Armenia on Copyright and Related Rights.} 866 _{Art. 69a.1, Urheberrechtsgesetz.}

867 _{Art. 19.1.a, Georgian Law on Copyright and Neighboring Rights.} 868 _{Art. 4.1.a, Directive 2009/24/EC.}

869 _{Art. 19.1.b, Georgian Law on Copyright and Neighboring Rights.} 870 _{Art. 4.1.b, Directive 2009/24/EC.}

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provides otherwise”872_{, which implements the provision of the EU Directive}873_{. Such lawful}

owner of a copy of computer program is also entitled to “make a back-up copy of the computer program or database, provided that this copy is designated for archival purposes only and for replacement of the lawful owner’s copy that has been lost, destroyed or become unusable”874_{, which repeats the wording of the EU Directive}875_{. However, the following}

provision of the Directive concerning the right of such legal owner “to observe, study or test the functioning of the program”876 _{is not implemented in Georgian law.}

Another regulation of the EU Directive implemented by the Georgian law is the provision concerning the free use of a computer program (decompilation). According to this provision, the lawful owner of a copy of the computer program is entitled to decompile this program, meaning – “to reproduce and transform the objective code into the initial text”877_{, which is in}

compliance with the Directive878_{. Besides that, Georgian law also sets the further conditions}

of decompilation to be performed by the entitled person, previously unavailable information, interoperability of the parts of decompiled program and non-disclosure rules,879 _{which are in}

compliance with the regulation of the Directive880_{. However, the reference towards Berne}

Convention and the requirement concerning the legitimate interests of the rightholder provided in the Directive881 _{is not implemented in Georgian law.}

872 _{Art. 28.1.a, Georgian Law on Copyright and Neighboring Rights.} 873 _{Art. 5.1, Directive 2009/24/EC.}

874 _{Art. 28.1.b, Georgian Law on Copyright and Neighboring Rights.} 875 _{Art. 5.2, Directive 2009/24/EC.}

876 _{Art. 5.3, Directive 2009/24/EC.}

877 _{Art. 29, Georgian Law on Copyright and Neighboring Rights.} 878 _{Art. 6.1, Directive 2009/24/EC.}

879 _{Art. 29, Georgian Law on Copyright and Neighboring Rights.} 880 _{Art. 6.2, Directive 2009/24/EC.}

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