Copyright: Why You Should Register Your Software
Software development constitutes a growing part of Latin-American countries GDP. According to ABES, the Associação Brasileira das Empresas de Software, only in Brazil, the software market amounted to 19.4 billion euros in 2013, ranking before China and India. How did the legal framework adapt to this technological shift?
Protection of software in Brazil and Argentina
Although computer software are not patentable neither in the Brazilian nor in the Argentine legal system, they enjoy a substantial protection through copyright laws in both countries. In Argentina, under Decree 165/1994 and law 11723/33 software is protected for 70 years after the author’s death, while Brazil Law 9609/98 grants 50 years of protection from January 1st of the subsequent year of the software’s publication or creation.
It is not mandatory, in Brazil, to register a software in order to obtain copyright protection: the rights are gained with the creation of the work and authorship could be proved in several ways for instance, by demonstrating that the software had been published already. One should be aware that Argentinian law demands the registration of every published work in order for the author to enjoy his patrimonial rights entirely. If the register is not done, the author will have suspended his patrimonial rights until the registration – Articles 62 and 63 Law 11.723. However, registration is the safest way because it creates a strong presumption of authorship and, therefore, ownership of the software. The competent authority for registering computer programs in Brazil is the INPI, while in Argentina is the Chamber of Software and IT Services Companies.
Registering a software grants the owner a substantial legal protection under civil and criminal law. In 1998, a Rio de Janeiro court delivered the first judicial decision under the new software law and found a Brazilian advertising agency guilty of utilizing pirated software, including programs by Adobe, Microsoft, and Symantec. The court ordered the agency to pay damages of $65 million, the equivalent to 500 times the value of the illegal software. On the other hand, it is true that litigation in the software protection area tends to be limited – as complex software cases tend to be settled between the parties to avoid costly and long trials: once more, however, the registration grants a strong ownership presumption, avoiding the necessity of proving authorship otherwise.
Another argument to consider when registering a software is that piracy is still a relevant issue in Latin America: in 1998 Latin American software piracy resulted in a loss of $1,045,500,000 to international software manufacturers. This is a particularly relevant issue for Brazil, where more than 77% of the software commercialized within the country has been imported from abroad. Registration will not rule out the possibility of piracy but it is a necessary first step when entering this panorama.
Finally, copyright registration provides protection and increases the software’s value in case the author decides to license it to other parties. Registration can be used as an evidence against a licensee who does not comply with the licensing agreement or who uses the work without permission.