LEGAL INFO@>Legal Info>Intellectual Property Law>Copyright>Software
Copyright 2000-2003 Daliv Group

1. Who is the owner of the patrimonial copyrights for computer programs?
There are two hypotheses:
a) Persons free of any contract create the program independently;
b) The program is created while performing work tasks or following the instructions of the employer.
In the first hypotese the patrimonial copyright belong to the author.
In the second case, the patrimonial copyrights belong to the employer, if there isn't a contrary clause in the contract.
Therefore, pay attention! In case in the contract there are no clauses regarding the beneficiary of the patrimonial copyrights over computer programs, it is supposed that they belong to the employer. In order for them to belong to other persons, specific clauses must be put in the contract.
Dan Livescu

2.What exactly is protected in case of a computer program?
According to Article 72-(1) of the Law 8/1996 the copyright protection of computer programs "includes any expression of a program, applications and operating systems, expressed in any kind of language, either in source-code or in object-code, the preparing conceiving materials, as well as the manuals."
The law does not define any of the above mentioned concepts. It is, therefore, up to the jurists, to the computer scientists and to the doctrine to clarify the concepts. Their being well-defined is very important for the judicial practice and to the real protection of computer programs.
Dan Livescu

3.What is it understood by license?
In computer programs trade, in most of the cases, a real selling of that program is not achieved. What it is offered is the right TO USE the program under certain conditions, that is...a license. The documents that accompany a computer program usually contain a warning such as "THE SOFTWARE IS LICENSED NOT SOLD".
The Romanian legislation, Article 2 of the Ordinance of the Executive, also contains a definition of the license: "the license for the computer program - the written consent of the titular of a computer program copyright for the cession of some rights towards the user of the program and which comes with the program."
The license is, therefore, a contract - agreement - between the owner of the copyright and the user. It accompanies the computer program and may be found in various forms. In practice, it can be either in written form (on paper), either in the form of a digital document that appears when the program is installed or opened. The usual denomination for such a document is "LICENSE AGREEMENT". We all saw, when we installed or used a computer program, an announcement of this kind "IMPORTANT - READ CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT DO NOT INSTALL OR USE THIS SOFTWARE PRODUCT". This is followed by the text of the license and (most of the times) by the options the user has if he agrees/does not agree with the terms of the license. The particular features of a license may be very different from one program to another depending on the characteristics of that program as well as on the licensing policy of each copyright owner.
Dan Livescu

4.What are the rights of the author of a computer program?
According to Article 73 of the Law 8/1996, the author of a computer program has the exclusive right to achieve and authorize:
"a) permanent or temporary reproducing of a program, integrally or partially, through any means and in any form, including the case in which reproduction is determined by the incarceration, displaying, transmission or stocking the program on computer;
b) translation, adaptation, arranging and any other transformations brought to a computer program, as well as the reproduction of the result of these operations, without bringing a prejudice to the rights of the person who transforms the computer program;
c) spreading of the original or of the copies of a computer program under any form, including rental."
These special rights of the author of a computer program are completed with the common rights of every creator of an intellectual work as stipulated in the Article 10-23 of the already mentioned Law.
Dan Livescu

5. In what situations may the authorized user of a computer program make a copy of it, without the authorization of the author?
Without the authorization of the author, the authorized user has the right to make " one archive or safety copy, in the measure in which it is necessary for ensuring the utilization of the computer".
Dan Livescu

6. May a computer program be reproduced for personal use or for a family circle without the consent of the author?
No, such a copy is not allowed without the consent of the author.
To be noted is that such a copy is forbidden by the law only in the case of computer programs, while in the case of other intellectual creation works it is permitted.
Dan Livescu

7.Which is the duration of patrimonial copyrights for computer programs?
According to Article 30 of the Law 8/1996, "patrimonial rights for computer programs last throughout the life-span of the author and after his/her death they are transmitted to the legal successors for a period of 50 years, as civil legislation stipulates.
Dan Livescu

8. What are the legal obligations of the persons who produce, distribute, commercialize or rent computer programs in Romania?
The Ordinance of the Executive 124/2000 regarding "the completion of the juridical framework regarding copyrights and related rights, through the adoption of measures against audio and video pirating, as well as computer programs pirating", institutes, for the persons who produce, distribute, commercialize or rent computer programs on the Romanian territory the obligation to communicate the following to the Romanian Copyright Office:
"a) the consent (agreement) of the titular of the copyright or of the producer for the distribution, commercialization or rental activities;
b) information about the way the license was given and, from case to case, the model of license given, on the Romanian territory, to the computer programs users." (Article 3 (1), letters a, b)
The methodological norms regarding the managing of the RPC (Computer Programs Register) issued by the Romanian Copyright Office impose to the persons who produce, distribute, commercialize or rent computer programs to "register in the RPC in term of 30 days from the date the Ordinance of the Executive 124/2000 came into force or from the beginning of the activities of production, distribution, commercializing or rental of the computer program ."
The above-mentioned methodological norms also specify the forms and the information that must be filed at the Romanian Copyright Office.
Dan Livescu

9. Which are the consequences of not complying with the obligations specified by the Ordinance of the Executive 124/2000?
Non-compliance with the above-mentioned obligations (Article 3(1), letters a, b) is a contravention and is sanctioned with a 20 to 40 millions Lei fine and with the seizing of the support on which the computer programs are recorded.
Holding copies of the computer programs on any support, with the purpose of commercializing or unauthorized rental, is also a contravention, sanctioned with a 25 to 40 millions Lei fine and with the confiscation of the copies.
These contraventions also hold for legal persons. In this situation, the limits of the fines increase by 5 times.
These contraventions are certified and sanctioned by the representatives of the Ministry of Internal Affairs and by the Romanian Copyright Office.
The representatives of the copyright titularies will have the right, upon their request, to accompany the above-mentioned agents .
One more thing must be noted. These contraventions, according to the circumstances in which they are committed, may be considered, according to the penal law, infractions. In this case, the sanctions are more severe.
Dan Livescu

10. What are the specific obligations of the producers of computer programs, in Romania?
Besides the general obligations presented above, the computer programs producers have the obligation to communicate the following, for each computer program, to the Romanian Copyright Office:
"a) the act that proves the copyright title over the computer programs or a signed declaration indicating that he/she is the author of the computer programs;
b) the license model given to the users of computer programs on the Romanian territory;
c) a copy of the computer program in the form in which it is produced;
d) information referring to the way the license was given and to the license model given to the users of computer programs on the territory of other states". (Article 1, (3) of the Methodological norms regarding the management of RPC)
Dan Livescu

[ home][our mission][ lawyer online] [legal info ][legal][ E-mail]
Copyright 2000-2003 Daliv Group. All rights reserved