Proprietary software and free software: the differences are governed by Copyright Law.

Principal differences between proprietary software and free software are mainly governed by Copyright Law, with particular reference to the protection of copyright on computer programs. The software, according to the definition given by WIPO in 1984 is “the expression of a set organized and structured instruction (or symbols) contained in any form or medium (tape, disk, film, circuit), able directly or indirectly to perform or to obtain a function, a task or a particular result by means of an electronic processing system “. The first system, which has legally qualified software as intellectual work is the USA via the Computer Software Amendment Act of 1980. Subsequently equal recognition has come from the EEC Directive 91/250 transposed into Italian legal system by Legislative Decree no. 518 of the 1992, which has introduced amendments and additions to the Copyright Act. In Italy software has intellectual property protection and in that it has technical requirements for falling within the definition of Art. 2, paragraph 1, no. 8 of Copyright Act  which states: “In particular, it includes the protection [.] of Computer programs, expressed in any form as long as the result of original intellectual creation. Excluded from the protection granted by this law the ideas and principles which underlie any element of a program, including those which underlie its interfaces. The program term also includes preparatory design material of the same program. “

  1. The two faces of copyright

The creation of any intellectual work involves the acquisition, with the author, of the economic exploitation of the rights and moral rights. The moral and economic rights are directly held by the individual who has “created” the work. The moral rights constitutes an indispensable human right and is embodied principally in the right to recognition of authorship and integrity of the same intellectual work. The Italian Copyright Act (under art. 20 and following) recognizes the author, even after the transfer of property rights, as owner of moral property and  work integrity point of reference. The right to integrity is embodied in the opportunity to object to any distortion, mutilation or other modification of the work as well as any act which would be prejudicial to his honor or reputation. All these rights are inalienable, indispensable  and may be enforced in case of death of the author.

Economic rights are the authority to use the work in any form or way, original or derived. In particular, it is the authority to reproduce, transcribe, perform or recite, disseminate, transform, develop and translate, lend, rent or sell the ingenious work (Art. 12 et seq. LDA) . Economic rights may be the subject of a total or partial sale: the partial sale constitutes a form of expression of the general principle that must be considered exclusively sold the rights expressly mentioned in the contract. The transfer of exploitation rights, like other forms of economic exploitation of ingenuity, must take place through signing agreements:  written form is required by Art. 110 Italian Copyright Act.

 With regard to property rights arising from the creation of a software should be noted that Article. 64a of Copyright Act has specifically identified exclusive rights concerning computer programs: property rights on software consist in the right to do or authorize reproduction, permanent or temporary, total or partial, of the computer program by any means or in any form, translation, adaptation, processing and any other amendments of programs computer, as well as the reproduction of the results thereof, without prejudice to the rights of those who change the program and again any form of distribution to the public, including the rental of the original computer program or of copies thereof. Who has the right to use a copy of a computer program may, even ig in the presence of a contractual clause to the contrary, do a backup and observe, study or test the software. The analysis must be intended to determine the ideas and principles which underlie any element of the program, if he performs such acts during the loading, displaying, running, transmitting or storing the program which he is entitled to run (art. 64 ter LDA). The licensee or other persons who have the right to use a copy of the program may, despite the absence of authorization of  the property rights owner, make a reproduction of the code or translation of its form in order to achieve interoperability with other programs. Information obtained shall not be disclosed to third parties or used for achieving the interoperability of different purposes such as the development, production and sale of similar programs.

  1. Main differences between “proprietary” licenses and “free” licenses.

The main differences are expressed, in particular, often in numerous user restrictions contained in the  concession contracts and user license.  “Proprietary” license agreement generally indicates with precision what is meant as a “permitted use” of program. Free licenses as Gnu GPL provide disclosure of source code, contrary to the licenses of proprietary software houses.

Other then operations expressly permitted by Copyright Act (backups, interoperability, etc.) GPL provides a) territorial scope of  the legitimate use; b) a maximum number of possible installations; c) identification of  computers on which you can install the program; d) a maximum number of backup copies. In this regard, pursuant to art. 64 ter, paragraph 2 of the Italian Copyright Act, “It can not be prevented by contract to those who have the right to use a copy of a computer program to make a copy of the program reserves, if such copy is necessary for the ‘use”; e) the possibility of transfer of the license from one computer to another (user-owned) in particular cases. Of particular significance, not least for purposes of comparison between proprietary licenses and GPL, the provisions contained in the license agreements for use of intellectual property. The intellectual property of the software house protection accompany, according to the Italian legislation on copyright, both the program and user manuals for which, subject to the exceptions, is not permitted program play outside the provisions of the license nor that of instruction manuals and user who accompany him (to protect the instruction manuals see. Pret. Milan, February 2, 1990, in Foro it., 1990, I, c. 2669 ff .).

Special rules also protect the brand, but in this case this issue will not be addressed. For the protection of industrial and intellectual property rights of the manufacturer, the licensee is obliged to treat in confidence all information provided by the software vendor and is committed to take all necessary precautions to ensure that that information is not disclosed to unauthorized third parties. As to the technical information about the program, consider that the manufacturer supplies the software in executable format (or in object code form) and then not make available the source code ( “source form”), nor the diagrams or logical design – the computer same, there is the problem of the information necessary to achieve interoperability of the licensed program with other program created independently by the licensee. The provision of such information is not mandatory for the producer and often – when supplies – requires the provision of compensation. Useful information for achieving interoperability are obtainable, at the expense of the licensee, through a decompilation process. Some standard contractual expressly prohibit to decompile, unless authorized by the software house. The mandatory ban on decompilation of the program, however, is expressly sanctioned of nullity in art. 64c paragraph 3 of the Italian Copyright Law. Decompilation is unlawful, then, only if information necessary for the licensee “have already been readily available.”  It is at least doubtful that the mere manifestation of availability of the manufacturer to disclose the necessary information makes the same “readily available”.

The GPL license and other licenses  of free software, making available the source code of the program, by definition allow interoperability between programs. Decompile or reverse engineering is therefore unnecessary for the user. The program is known in its genesis as well as in its essence and in its mode of operation. About interoperability should be noted the provisions of the aforementioned Article. 64c of the Act on Copyright: “The authorization of the copyright owner is not required if the reproduction of the computer program code and translation of its form within the meaning of art. 64- bis, a) and b ), carried out in order to change the shape of the code are indispensable to obtain the information necessary to achieve interoperability with other programs, a program independently created computer as long as the following conditions are met: a) the above activities are carried out by you or by others who have the right to use one copy of the program or, on their behalf, by a person authorized for this purpose; b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to letters a), c) these activities are limited to those parts of the original program which are necessary to achieve interoperability.

The provisions of paragraph 1 shall not permit the information obtained through its application: a) to be used for purposes other than achievement of interoperability of the independently created program; b) be given to others, except when necessary for the interoperability of the independently created program; c) to be used for the development, production or marketing of a computer program substantially similar in its form of expression, or for any other activity that infringes copyright. Significantly with art. 64 Law  on copyright shows that the availability of the source code or its discover by the licensee (or its employees) as a result of processes of reverse engineering is exclusively aimed interoperability of the “owner” type computer program with other programs; for this reason, the provision cited does not allow use of the information obtained for purposes other than of achieving interoperability; the same cannot be given to others, “except when necessary for the interoperability of the independently created program” and cannot be used for the development, production or marketing of a computer program substantially similar. Such a provision, being totally “protectionist” to the software company, braids done inhibits any effort or attempt to play and technical progress in the field of software production. This regulatory framework, when read in conjunction with the provision that allows only one copy for back up (and until yesterday criminally sanctioned those reproduced without permission and only for personal use) is protectionist. It does not promote research and innovation in the software field. That’s why are necessary, indeed essential, the “free” licenses and in particular the license “GNU GPL”.

  1. Why free software is not contrary to copyright

Free software, under GPL license or other similar licenses (such as BSD or  Mozilla License), though the law on copyright give a series of exclusive rights to the holder of the rights of economic exploitation, is not at odds with the intellectual property rules. In particular, pursuant to art. 1 of the Terms and Conditions of the GNU General Public License, “You may copy and distribute verbatim copies of the Program’s source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program.You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee.

 Article. 3 “You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

  1. a)Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
  2. b)Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
  3. c)Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)”

The source code for a work means the preferred form of the work for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable. However, as a special exception, the source code distributed need not include anything that is normally distributed (in either source or binary form) with the major components (compiler, kernel, and so on) of the operating system on which the executable runs, unless that component itself accompanies the executable.

If distribution of executable or object code is made by offering access to copy from a designated place, offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code.

In any case with the major components of the operating system on which the Program runs (compiler, kernel, and so on) it is not necessary that the source code include anything that is normally distributed (in either source or binary form), to unless that component itself accompanies the executable. If distribution of executable or object code is made a place by offering access to copy, permit to copy the source code from the same place counts as distribution of the source code, even if you copy the source is optional for the ‘buyer. “In particular, with reference to reverse compile, that the Italian law on copyright authorizes only as long as aimed at achieving interoperability between programs, those who adopt a GPL, this License  grants the user knowledge of the source code, its sharing and therefore the possibility to intervene on it to change it, adapt it to your needs, create a new program. The disclosure of source code, even the right to copy and distribute copies of the program, copies of the source code are permissions made by the author on his economic rights of copyright.


Inserisci i tuoi dati qui sotto o clicca su un'icona per effettuare l'accesso:

Logo di

Stai commentando usando il tuo account Chiudi sessione /  Modifica )

Foto di Facebook

Stai commentando usando il tuo account Facebook. Chiudi sessione /  Modifica )

Connessione a %s...