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a. What is a copyright?

The law does not provide a definition of copyrights.

However, to be protected by the copyrights law, a creation should meet two conditions:

• being expressed in a certain form, allowing its communication to the public; thus, an idea cannot be protected;
• being original, namely: being determined by the personality of the author or authors.
  
  These conditions allow the protection by copyright law of a wide range of creations, such as:
  • pieces of music,
  • technical and architectural drawings,
  • books (even tourist guides or dictionaries),
  • publicity slogans,
  • hairstyle models,
  • software,
  • an anthology of texts or images (even without comments, whenever the author of the anthology made a choice following a personal classification; however, the compiling work as such is not protected, no more than a collection of books in itself),
  • etc.

b. What are the rights attributed to authors?

The author monopolises his works in an absolute manner, which results in two types of patentable copyrights:

A. Financial rights

These rights organise the communication and exploitation of the work.

The author only owns the right:

• to reproduce or to authorise the reproduction of his work in whatever the manner or whatever the form may be (for example the right to authorise adaptation and translation, renting or borrowing), and
• to communicate his work to the public by whatever the means might be (for example, by radio broadcasting, television, etc.).

These rights may be assigned to others or may form the object of an assignment deed, either for both rights simultaneously or separately. An author of a book can, for instance, authorise an editor to reproduce and to commercialise his work, authorise a film company to produce a film based upon his work and may authorise other companies to translate and to commercialise his book abroad.

B. Moral rights

These rights protect the creator’s personality as well as the creation in itself.

These rights comprise :

• right of disclosure: the author values independently whether his work is finished and ready to be disclosed to the public. This right is attributed to all authors except to developers of software programmes.
• right of authorship: the author only decides to publish his work under his own name, under an pseudonym or anonymously. He has the right to request his name to be mentioned upon the work, he may renounce this right or he may even have a third party to sign in his name.
• right concerning the work’s integrity: the author may prohibit all modification of his work.

The moral rights may form the object of certain conventions: the author may renounce them. Thus, the author may authorise his co-contractor to have his work exploited; the author may allow his co-contractor to cut and modify; he may as well bind himself not to sign his work (namely: having been signed by others). On the other hand, an author may not renounce beforehand his moral rights in a general way. As a result, an author linked to an editor for his next works may not renounce all his rights but he may renounce his moral right for a certain amount of specific and predetermined books.

c. How long does a copyright last?

The author maintains his rights during his life and after his death (or the death of the last co-author in case several authors are involved). These rights are extended to 70 years after the date of death before being placed in the public domain.

d. Must copyrights be registered?

NO. There is no need whatsoever to file or to register. Creative works should not be determined nor registered on a material support in order to be protected.

This principle is different from the Anglo-Saxon system of "copyright" whereby the copyright originates in his capacity of applicant for registering the work in a specific register.

However, it is often difficult in case of conflict to prove that one’s right was anterior to another person’s right. It is however possible to solve this problem of proof by "making official" the date of creation of one’s work. As a result, one attributes a fixed date from whereon one may claim one’s personal right of possession. This requires certain formalities and our offices will be pleased to offer their services concerning this matter.

Even when these formalities may be performed for all creations susceptible of being protected by copyrights law, we recommend them especially for software programmes.

e. Do i have to use ©?

According to the Belgian law, this sign is not obligatory. Nevertheless, affixing the symbol is useful to inform the public about an original work being protected by copyrights law.

f. Who owns copyright for a creation upon demand or a creation made by an employee?

The general rules mentioned above are applied. Nevertheless, in order to facilitate the assignment of rights, the law foresees important exceptions to imperative rules accompanying the assignment of rights (notably and especially for the works of employees).

There is only one main rule to consider: the assignment of rights should be written (for instance, in a contract of employment).

Depending upon each case specifically, we imperatively recommend to consult a specialist for preparing the assignment deeds.

g. Are copirights ptrotected abroad?

Various international conventions (namely the convention of Berne) are related to copyrights and aim at the harmonisation of the legislation existing in different countries.

However, two opposite basic ideas can be distinguished :

• the idea existing in continental European countries where the author is privileged and where no registration is obliged;
• the concept followed in Anglo-Saxon countries where the investor is privileged and registration is obligatory (copyrights system).

Since 1988, however, with the ratification of the Berne convention by the United States, national legislation have tended to be reconciled.

For more detailed information concerning the legislation of each country, we recommend to consult a specialist in the field.

h. What kind of protection is attributed to a software program?

A computer programme cannot be protected to the same extent as filing a patent application. However, if a new computer programme is characterised by a technical effect, it is susceptible of being equally protected by the filing of a patent application for an invention.

For more detailed information, we recommend to consult a professional within the field of industrial property.

Copyrights law is to be applied to computer programmes, except for some small adaptations.

A. Definition

A computer programme can be defined as a total of indications or instructions meant for being used directly or indirectly in a computer in order to obtain a certain result.

B. Scope of protection

Protection by copyrights is not only aimed at software, namely: computer programmes as such but also preparatory conceptual material (namely description of the programme, all printed documents including the functional analysis of said programme).

Valuation of a computer programme’s originality is analysed similarly as the copyrights related to other works. Thus certain simple programmes will not meet the requirements for being protected.

One may indeed conclude that, whenever a large number of users use an identical programme in order to solve a given problem, the latter may be considered to be banal and impersonal. The same counts for accidental results, a machine being instructed to work accidentally.

Additionally, legal protection does not apply to methods (not even to new ones), nor to the mathematical formula use and discovered for the occasion. Sequences of computer programmes are subjected to protection.

C. Rights conferred to computer programmes by copyrights law

The author has the same rights at his disposal as the other creators (cf. supra). Consequently, copyrights equally extend to the usage of the computer programme.

Because realising the reproduction of a programme requires first a reproduction of the latter to enable its transmission, its posting, its loading, its storage, etc., this reproduction in itself is objected to the authorisation of the holder of these rights.

Additionally, the law allows to depart from the general principles of moral usage of software allowing certain possibilities of reproduction.

The user may freely :

• carry out any reproduction and transformation of the programme if these acts are necessary for using the latter or in case it allows the user to connect systems between them to assure the exchange of data and their use;
• make a back-up copy in case this copy is necessary for using the programme;
• test, observe and study programme functioning when posting, transmitting, passin

Of course, these activities of use can only be performed by persons authorised to apply back-up copies of the programme. This authorisation is often performed by contractual means (license of use).

On the other hand, these modes of usage may not cause any harm to the author’s legitimate interests, nor aim at exploitation of his programme.

In other words, pirate copies are forbidden.

As far as moral rights are concerned, it should be noted that the author of a computer programme may claim authorship and respect for his work’s integrity but may not refer to the disclosure right upon his work.

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i. What penalities exist in case of copyrights violation?

The legislator foresees a penalty for misleading or fraudulent attempts. If this element of intention is lacking, the author may always ask civil court to end the fraud and to obtain restoration of rights (if necessary, by referring to urgent measures such as seizure, suspension of representation or diffusion, etc.)

j. How to obtain additional information on copyrights?

Office Van Malderen has several engineers and lawyers at its disposal, who are all experienced in the field of copyrights. Office Van Malderen is exclusively specialised in the protection and (legal) defence of industrial property, including copyrights.

It could also be useful to refer to the WEB site of W.I.P.O.

WEB site : www.wipo.org