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2012 4月

2012.4.25

「Software Protection – A Comparative Perspective」は、以下の1から12のQuestionnaireに対する回答という形で、世界24カ国におけるソフトウェアの保護に関する法制を比較した論文集です。
影島弁護士は、日本法に関する部分を執筆しました。
(http://www.mur-verlag.de/buecher/int-titles/buecher/2012-02-09_software-protection.html)

1. What is the legal definition of software, to which category of objects of rights and obligations does it belong to?
2. What conditions must be met for software to be protected by law?
3. What rights related to software are protected by law? And who is the original “bearer” of these rights in case of
(i) ordered work that is provided by an individualauthor;
(ii) ordered work provided by a software house;
(iii) software programmed by an employee (i.e. can a company represent the original author/bearer of the rights to the software, or can it only bear derivative rights?).
4. Are such rights transferable? Are there any limitations to such transfer?
5. Are there any other ways (apart from the transfer of the rights) of providing a third person with these rights or their derivates? Can the original author impose his own limitations on users? Is author obliged to publish his/her work? Under what circumstances?
6. Are source/object codes considered to be a part of work of software? How is a derivative work (localisations, compilations of source code, decompilations of object code) assessed by law (i.e. is it deemed to be a part of the original work or a new work, are they connected in any way)?
7. Changes and modifi cations of the software – are the rights of the author with respect to the integrity of software protected? Are there any statutory licenses enabling the software to be changed and modified by the user (i.e. may a user modify or decompile software, if it is necessary to preserve its functionality by the virtue of law; or only if source code is provided; or only upon an explicit license)?
8. How are collective works regulated and how is the employee as an author treated by the law?
9. Liability for damages, product liability on the part of an author. Is it possible to limit or exclude liability for damages and/or product liability with respect to software?
If so, is it regulated by general law or a special, software-focused, framework?
10. How IT related disputes are usually resolved? What is the prevailing (plus what is the recommended) body to solve such disputes? How long does it take?
11. How can a court decision or an arbitral award relating to IT dispute be enforced; how long does it usually take?
12. In total, what is the average time period from the presentation of a formal petition (to an arbitral/judicial or similar first instance body) until the award of an enforceable decision?

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