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  • 6. Using Computer Program Works
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6.1 Necessary Copying

According to the Copyright Act: "Any person who has legally acquired a computer program shall be entitled to make such copies of the program as may be necessary for its use for the intended purpose." [1] This provision is not peremptory and exceptions to the right to make copies can be made by agreement. In this case, general contractual principals are applied. Making copies may be restricted, e.g., by a license agreement, in which case the decisive factor is whether the agreement is considered unfair to the user; if so it can be ignored.

Necessary copies can be made only by individuals who have legally acquired the computer program. A computer program that is acquired through sale or similar legal transfer is considered legally acquired. The decisive factor when considering the legality of the transfer is whether the program has been manufactured and brought into circulation with the copyright holder's permission [2].

As such, the Copyright Act does not impose any restrictions regarding the number of copies made of a computer program. On the other hand, it requires that each copy must be necessary for the program's use for the intended purpose. The program's intended purpose is ultimately expressed in the agreement, e.g. in the terms and conditions of the software license. [3] For example, copying a program to several users is not allowed on the basis of a single workstation license. Nevertheless, the Act allows producing one back-up copy of any program.

6.2 Permitted Alteration

According to the Copyright Act, anyone who has legally acquired a computer program has the right to make such alterations to it as may be necessary for its use for the intended purpose. The right to make alterations is not absolute, and can be prohibited, e.g. in a license agreement. [4] However, in case law the right to correct minor errors has been considered an absolute right that cannot be restricted by agreement [5].

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Photo: Jarno Elonen
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Supreme Court decision KKO 2008:45 offers a good example of what kinds of alterations can be made to a legally acquired program. The case concerned a computer program controlling the production line for Karelian pasties. The bakery, that had legally acquired the program in question, made alterations to the program that became necessary due to changes in the equipment. The decision discussed whether making the alterations was permissible. According to the Supreme Court, the "intended purpose" of a computer program should be interpreted according to what purpose the program has been acquired for and how it is usually used in each specific case. As the program's intended purpose was not affected by the alterations made, the Supreme Court considered the alterations permissible. [6]

6.3 Studying a Program

According to the Copyright Act, any person who has the right to use a computer program is entitled to observe, study, or test the operation of the computer program in order to determine the ideas and principles underlying any element of it [7]. Any such observation, study, or testing must be done while engaged in the act of loading, displaying, running, transmitting or storing the program.

This provision of the Copyright Act is provided as clarification, because copyright does not protect ideas or principles – it only protects the original form of expression. The purpose of the provision is, therefore, only to establish that any observation, study, or testing accordant with the Act cannot be blindingly prohibited in a licensing or user agreement. [8] Any such condition is not binding to the user who has legally acquired the program. The only precondition relating to the study of a computer program provided for in the Act is that it must be done within the context of the program's ordinary operation. [9] Thus, making a copy of the program in order to study it is not allowed.

6.4 "Reverse Engineering"

The Copyright Act allows – when certain conditions are met – the reverse engineering or decompilation of a computer program [10]. When the conditions of the Copyright Act are met, the right to reverse engineer a program is absolute, and cannot be restricted by a license or any other agreement [11].

According to the Copyright Act, the reproduction of the code of a program and the translation of its form are permissible, provided that these acts are an indispensable means of obtaining the information whereby an independently created computer program may be made interoperable with other programs. In addition to the requirement of indispensability, the reverse engineering must fulfill three further conditions [12]:

  • Reverse engineering must be performed by a person who has the right to use a copy of the program
  • The information necessary to achieve interoperability must not have previously been readily available
  • Reverse engineering must be confined to the parts of the original program that are necessary to achieve interoperability.

The purpose of this provision is to ensure interoperability with other software products. It would not be fair to the program's user if considerable amounts of money in various programs had to be invested only to find out that the programs are not interoperable, and thus practically useless.  This is why interface data (parts of a program that support interoperability and make it possible to connect the program to other software) is often as valuable as the actual source code data.

In practice, the person performing the reverse engineering must be a license-holder or have some other right to use the program. On the other hand, anyone with the right to use the program can commission the reverse engineering to a third party. In this case the authorization must be explicit. Reverse engineering is prohibited if the information is otherwise readily available, for example, if the information can be found in the operating manual of the computer program. In practice, reverse engineering is also not allowed if sufficient information can be requested from the right-holder. [13]

Information obtained through reverse engineering may not be used for any other purpose or released to any third party, unless it is necessary to achieve interoperability. In other words, the information may not be transmitted to any third party unless they also need to examine interoperability. According to the legislative history of the Copyright Act, information thus acquired may nevertheless be used to a certain extent for developing new and independent programs [14]. Exploiting the information is possible as long as the copyright of the original program is not infringed.

Notes and References

[1] Copyright Act § 25 j

[2] Välimäki (2009): Oikeudet tietokoneohjelmistoihin, Talentum, Helsinki.

[3] Välimäki (2009): Oikeudet tietokoneohjelmistoihin, Talentum, Helsinki.

[4] Copyright Act

[5] Harenko – Niiranen – Tarkela (2006): Tekijänoikeus, kommentaari ja käsikirja, WSOYpro, Helsinki.

[6] Supreme Court decision KKO 2008:45

[7] Copyright Act

[8] Copyright Act

[9] Välimäki (2009): Oikeudet tietokoneohjelmistoihin, Talentum, Helsinki.

[10] Copyright Act

[11] Legislative History of the Copyright Act

[12] Välimäki (2009): Oikeudet tietokoneohjelmistoihin, Talentum, Helsinki.

[13] Harenko – Niiranen – Tarkela (2006): Tekijänoikeus, kommentaari ja käsikirja, WSOYpro, Helsinki.

[14] Copyright Act