*By Rafael Lacaz Amaral and Victor André Santos de Lima
In Brazil, following the provisions of the TRIPs Agreement (Agreement on Aspects of Intellectual Property Rights related to Trade), computer programs are protected by Copyright, one of the branches of Intellectual Property. This protection regime is provided for in art. 2 of the Software Law (Law nº 9,609/1998) and in art. 7 of the Copyright Law (Law of 9,610/1998). Although it is possible to protect embedded software by patent, this article will provide a brief analysis of a right that authors and holders of software protected by that regime have, namely, the right to monitor the economic use of the copyright work.
Currently, many users accept software licensing contracts without proper reading and attention. This negligence is unfortunately a failure that occurs widely in the market, including within companies, which can especially harm developers and software owners, since their solutions may be used in non-compliance with the contract, harming, therefore, your royalties and income.
The software holder, the one who holds the property rights over the work, can establish rules for use and access to the program license, limiting, for example, the users and computers that can access the license, the access perimeter, the use simultaneously. The definition of limits, both in SaaS software and in on premises, can help the licensor earn more profits from software licensing, ensuring that their business can grow healthily and with a solid customer base.
However, users' disregard for licensing contracts generates numerous cases of software non-compliance, draining licensors' income and contaminating the market with unfair practices. This is not software piracy, which generates a high loss of revenue annually for several owners, but a type of contractual and copyright violation, which also significantly affects this sector.
Sharing logins between employees and simultaneous access are common situations that occur in the market, practices that may initially seem harmless, but deteriorate the income of developers and software companies. To mitigate this, the remedy is simple: licensing agreement. Although it can also be seen as a problem, the contract is still the holder's best ally.
Software companies can establish clear rules of use in licensing agreements and develop technologies to limit non-compliant access, such as blocking when access does not occur on the correctly indicated computer, in a specific perimeter or by the same user. Technical information from users can also be collected, in accordance with the General Personal Data Protection Law (LGPD), so that decision-making can be assertive. The fact is that each software can have a personalized security and license management system, in order to monitor and ensure appropriate use.
Furthermore, the contract may establish the possibility of collaborative audits to assess the compliant use of the software by the user/company, with the aim of mapping excessive use and/or sublicensing. Even though it may seem evasive at first, it is a common procedure in this market, especially promoted by large companies in the area. In other words, there are possibilities for internal limitations, that is, technical ones, to ensure compliance, as well as external ones, such as audits, and all of this based on the licensing contract.
Can you, as a developer or legally responsible for a software company, imagine a license for your computer program being used by more than one specific user even when the license is very personal, that is, it could not be shared with third parties? If yes, then there is a problem. If You do not have clear rules in the licensing agreement, this should be reviewed as soon as possible, including the implementation of possible solutions, such as the creation of technical blocks and audits.
Remember the right to inspection mentioned at the beginning of the text? Well, it is a fundamental right provided for in the Federal Constitution, art. 5, item XXVIII, paragraph b – right to monitor the use of the author’s work. As the computer program is a work of authorship, both the developer and the company that owns the software can take advantage of this right and implement techniques as soon as possible to recover lost revenue and mitigate unauthorized access through a software compliance policy.
However, it is not enough to foresee several confusing limitations. A software licensing agreement must preserve the licensor's interests and also guarantee the protection of users, who are its customers and the basis of the business. It is important to note that, depending on the legal relationship, the contract may be subject to the rules of the Consumer Protection Code, which establishes, among other highlights, that contractual clauses will be interpreted in a manner more favorable to the consumer.
The fight against software piracy continues, but it is an old war with several nuances. Even if you don't suffer from piracy, are you ready for this battle against other forms of licensing non-compliance?
*Rafael Lacaz Amaral. Lawyer and Partner at Kasznar Leonardos Advogados. Specialized in Legal Litigation in Intellectual Property. Head of the Legal Litigation, Anti-Piracy, Brand Protection and License Compliance team.
*Victor André Santos de Lima, lawyer and team leader at Kasznar Leonardos Advogados. Works with Anti-Piracy, Software Compliance, Digital Law and Copyright Law. Master's student in Intellectual Property and Technology Transfer at UFRJ and Postgraduate student in Civil Procedure at PUC-MG. Co-founder of LAPI-UFRJ and Member of DEPIS.
Contact victor.lima@kasznarleonardos.com
Notice: The opinion presented in this article is the responsibility of its author and not of ABES - Brazilian Association of Software Companies
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