Monday, April 02, 2007

Ownership of State produce works

In several conversations in different places and with different people (I especially remember one late night in Cusco) we have discussed who owns software created by an organism of the State. Can this organism require other parts of the same State to pay for its use? Or, can it deny the use altogether?

In the case of Argentina, it seems that the question is not one of copyright or contract law (as per licensing), but a pure issue of constitutional and administrative law.

If the software in question is written by a centralized organ, it is important to remember that this type of organism has no juridical personality independent from the State’s juridical personality. Then, if we take into account that to carry out their duties these organs interrelate and concentrate following rules of dependence and subordination and that they keep between them a strict relation of hierarchy with different degrees and levels, but always respecting the instructions and directives of the respective ministry, and that according to the article 103 of the Argentine Constitution the ministers cannot make resolutions on their own, with the exception of issues concerning the economic and administrative regime of their own departments, and that the article 99.1 of the same constitutional instrument de President is the political responsible for the administration of the country, copyright should be invested upon the State and the President is who exercises that right at its pleasure (although if you use this phrase in Argentina as much as it has been used here lately, you would have riots in the street).

In the case of the program being written by a decentralized organism, the titularity of the copyright would depend on the law or decree creating the organism. If a doubt exists about the faculty of such organism to claim ownership over software created within its boundaries, it needs to be remembered that “while in private law capacity is the rule, and accordingly it is presumed unless a express norm denies it, in public law the capacity of an organ is not presumed and it must be invested expressly o reasonably implicitly by law to be reputed as legally existent” (Gordillo, Tratado de Derecho Administrativo, own translation)

Unfortunately, neither Law 11.723 on the Legal Regime of Intellectual Property or its modifications make reference to intellectual property rights acquired by the State, for which it could be argued that, in absence of an express norm, the decentralized organs, as the centralized ones, do not own the copyright of the software they produce. If the idea is to find the assignment of those rights implicitly, the more general topic of the competency of the different organs and the form of resolution of competency’s conflicts could be analysed. In this case, again, the issue seem to end in the State owning the titularity of the copyright, with the only exception of the cases where a law expressly delegates it, because the competency of the organisms of the State exist only due to express delegation (Law 19.549 art 3) and in the case of conflict, this is resolved through a pyramidal and hierarchical system that has its tip the executive branch of government (Law 19.549 art 4).

In other countries the issue has been solved in many different manners. In the United Kingdom, the Works created under the orbit of the State are property of the Crown and the copyright subsists 50 years from its publication (125 years for unpublished works), according to the Copyright, Designs and Patents Act 1988. The United States has found a solution that, personally, seems more adequate. Taking into account that all works produced by the State belong to the society that the State represents and in addition they are produced using resources that belong to the society, the US Code 17 in its section 105 clearly states copyright is “not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”

Going back to the situation of Argentina, if an organism registers a work, the fact that the National Directorate for Authors Rights (a little broader than copyright) has taken the work to be registered is irrelevant; the lack of competency conditions the validity of the act but not its existence…

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