Software Legality – Who is in Charge of Control?

Software Legality – Who is in Charge of Control?

November 16, 2022

The Law on Amendments to the Law on Special Authorisations for the Purpose of Efficient Protection of Intellectual Property Rights was published in the Official Gazette of RS no. 129/2021 of December 28, 2021, which piece of regulation governs special authorisations of public administration authorities and organisations that exercise public prerogatives for the purpose of efficient protection of intellectual property rights, in compliance with legislation governing the respective rights.

Amendments to the Law

According to the subject amendments to the Law on Special Authorisations for the Purpose of Efficient Protection of Intellectual Property Rights (Official Gazette of RS no. 46/2006, 104/2009 – other laws and 129/2021) (“the Law“), which entered into force on the eighth day following their publishing in the Official Gazette and whose application started upon the expiry of nine months after the entry into force, i.e., on October 6, 2022, the responsibility for software legality control was assigned to the Market Inspection, which took over this supervision role from the Ministry of Finance, i.e., the Tax Administration.

Namely, according to the provision of Article 7, paragraph 1 of the Law, the ministry responsible for trade, tourism and services shall, through the Market Inspection, establish a possible infringement of rights to computer programmes (software) and databases. In relation thereto, the subject ministry also took over from the Tax Administration the software used for identifying illegal software and databases, with a user manual. However, all cases received until October 6, 2022, as well as procedures for establishment of a violation of intellectual property rights, including the infringement of rights to computer programmes (software) and databases, that were instituted prior the aforesaid date shall be finalised by the Ministry of Finance, i.e., the Tax Administration.

Copyright relating to a computer programme

Pursuant to the provision of Article 2, paragraph 2, item 1 of the Law on Copyright and Related Rights (Official Gazette of RS no. 104/2009, 99/2011, 119/2012, 29/2016 – decision of the CC and 66/2019) (“LCRR“), a work of authorship shall be deemed in particular written works (books, brochures, articles, translations, computer programmes along with their technical and user documentation in any form of their expression, including their preparatory design material, etc.).

Accordingly, the author of computer programme, as a natural person who created such work of authorship, shall be the holder of copyright, i.e., shall enjoy moral and economic rights relating to his/her work of authorship from the moment of creation of such work. However, according to Article 95, paragraph 3 of the LCRR, if a computer programme was produced on basis of a contract on commissioning a work of authorship, the commissioning party shall acquire all rights to the exploitation of that computer programme (unless otherwise provided by the contract). Furthermore, Article 98 of the LCRR stipulates that, if a computer programme (or a database) was created as a work of authorship in the course of employment, the permanent holder of all exclusive economic rights on such work is the employer (unless otherwise stipulated by the contract), while the author shall be entitled to a special remuneration (if stipulated by the contract).

Therefore, a work of authorship includes moral and economic rights of authors, which are enlisted and regulated in detail under the LCRR.

With regards to copyright restrictions, LCRR contains provisions on suspension of exclusive rights and right to remuneration. Article 47 of LCRR thus stipulates the rights of person who has lawfully acquired a copy of computer programme (unless otherwise stipulated by the contract), while Article 48 of LCRR prescribes the conditions for reproduction of source code and translation of its form without the permission of right holder.

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