How to Copyright Source Code in Argentina

April 11, 2019
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In legal terminology, the term “copyright” is used to describe the rights of creators over their literary and artistic works. Just like a book or a song, computer code is a creative expression of an author. If an IT entrepreneur or tech-startup would like to have total control over their creations, they have to use the protection methods provided by law.

There are many important reasons why a programmer might seek copyright protection. Whether you are a start-up entrepreneur looking to secure the key assets of your business, or a C-suite executive aiming to protect your vital source code; this article will provide an overview of how to protect and register your software’s programming code in Argentina, its procedure, requirements, and litigation.

As you may already know, the best way to safeguard your source code is to treat it as intellectual property. This entails obtaining a legal copyright to provide you with much-needed protection and remedies against source code theft and other infringements. Thus, obtaining copyright for your business’s most precious asset is pivotal to long-term success.

Why is Source Code Copyright in Argentina important?

It is remarkable the impact that the software development industry is having on the positioning of Argentina as an exporter of high value-added services to markets such as the U.S. and the European Union (EU). This industry has grown steadily over the past 18 years. In 2017 Argentine software reached a historical record in exports with US$ 1699 million. Moreover, exports are forecast to grow 15% in 2018 and the following years according to the Argentine Chamber of Software Industry (Cessi). [1]

It is noteworthy that the enactment of Law 25,856 for the Declaration of the Software Development Industry and Law 25,922 for the Promotion of the Software Industry have provided the local Software industry with a clear regulation and referential framework that has not only generated tax advantages, but has identified it as one of the most dynamic economic areas of the country and with greater projection to continue growing in the next decades.

The Software Promotion Law, regulated in November 2004, creates a system of tax incentives for those companies in which more than 50% of their activities are integrated in the software or computer services industry. Likewise, companies must comply with quality certifications and 8% of their turnover in exports. [2]

In this context it is important to fully understand how to copyright source code to have this protection against competitors.

Undoubtedly, established tech companies and new start-ups will all be vying for a piece of this lucrative pie. But how many will fall by the way side from data leaks and source code theft? The risk of having your source code stolen or duplicated, and in the worst scenario, used by a competitor is not one you can afford. As such, the importance of ensuring a competitive advantage by copyrighting your software and source code should never be underestimated.

As in many countries, source code in Argentina is recognized as ‘literary work’ and can be protected under copyright laws, domestically and internationally. Specifically, source code copyright in Argentina is achieved as part of copyrighting your program or software, by registering with the National Copyright Office.

Before we get into the registration process and requirements, let’s take a look at the intricacies of software copyright law in Argentina, its history, and the most relevant regulations governing this industry.

Existing Copyright Laws of Argentina

Copyright law in Argentina was first introduced by the 1853 National Constitution. Section 17 states that “Every author or inventor is the exclusive owner of his work, invention or discovery, for the term granted by law“. [3]

Although the Argentine Copyright Act (Law No. 11.723) dates back to year 1933, which is regulated by Decree No. 41.223 from 1943; its broad definition of “protected works” allows nowadays the extension of such legal concept to a wide range of works regardless the procedure employed for its creation. On the other hand, the legal protection of software was far from being contemplated, since such programs didn’t exist yet. Section 2 grants copyright owners a variety of exclusive rights, such as to dispose, publish, perform, communicate, transfer, translate, adapt and reproduce such works in any manner.

With the revolution of the computer industry, most of the jurists and the local courts included computer programs or software and data compilations, among the protected works. Then in 1994 the Argentinian Government through decree 165/94 included the software in the list of works protected by the Argentine Copyright Act, establishing also the registration process before the National Copyright Office.

But it wasn’t until 1998 when the Act 25.036 (known as the Software Act) was launched that Software was granted with full protection through copyright law in accordance with international treaties signed by Argentina. Given the importance of this new regulation for the Software industry in Argentina, it is appropriate to analyze the amendments introduced by it.

The Software Act modifies the article 1 which considers as protected works, the programs of source and object computing; and compilations of data or other materials.

The source code is the one that is written in the programming language, which is readable by the human beings. The Object Code is the language that results from the conversion of the language of the source code to the machine language that is expressed in binary alphabet and therefore is unintelligible to humans. Compilations of data are the databases of information, interrelated and compiled for storage, processing and retrieval using computer techniques and systems. All of these elements are protected by law.

The Software Act is supported by and often utilized in conjunction with the International Copyright Laws since Argentina is a party to several international treaties that recognize and regulate copyright, which prevail over local laws according to the National Constitution.

Will Argentina Copyright Law Protect my Source Code Internationally?

Argentine Copyright Laws only offer protection of copyright domestically. Hence, to secure protection for local works in foreign countries, Argentina has become a member of the following international conventions on copyright:

  • Berne Convention for the Protection of Literary and Artistic works
  • Universal Copyright Convention
  • Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement
  • WIPO Copyright Treaty
  • WIPO Performances and Phonograms Treaty

Argentine copyrights of nationals or entities, as part of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention, WIPO Agreement and the TRIPS Agreement, are given copyright protection in all member countries. [4]

In the other way around, courts have found that foreign works that meet the requirements of the Universal Copyright Convention are protected by Argentine law, regardless of whether they have been registered in Argentina.

What are the Benefits of Copyrighting your Source Code?

As with everything concerning copyright, the mere fact of having created something establishes the moral and economic rights over the creation. That is to say, the rights are born automatically for the author with the act of creation of a work, as long as the work reflects an original expression. Thus, registration is not required for purposes of recognizing the copyright rights but it is advisable to do so, as to enforcing them in the most efficient and effective way. Whoever registers their software work has access to certain benefits:

  • Proof of existence: upon registration before the National Copyright Office (in Spanish Registro de Derecho de Autor), it is granted with certainty of its existence on a certain date, in terms of its author and content, as well as a prima facie evidence in court to confirm the validity of the copyright and ownership.
  • Protection of the user in good faith: the author of the Work is presumed to be the one who appears as such in the registration certificate, unless there is proof to the contrary. The author who publishes the work according to the requirements of the National Copyright Office, would be exempted from criminal liability, in the event that the true author is presented claiming his rights.
  • Publicity of registered works: the primary function of a registry is to make its content known. Registering a work such as source code establishes a public record of the copyright claim. Information benefits all those who have an interest in opposing their rights against third parties and those who seek to ascertain the viability and legitimacy of a specific work.
  • Under Argentine copyright laws the creator of computer source code, object code, database, and software is provided with the following rights:
  1. Ability to reproduce the code or software in any material or electronic form
  2. Ability to create and issue copies of the code or software
  3. Ability to make any adaptations to the code or software
  4. Ability to license and sell the code or software to any other person or entity
  5. Moral rights, which include the right to be named as the author, preserve the work and decide its publication.

The violation of such rights constitutes copyright infringement. Copyright infringement is assessed on a case-by-case basis. A substantial similarity with a work is enough to prove infringement.

Remedies for Infringement

  1. Temporary and permanent injunctions
  2. Impounding and destruction of infringing copies
  3. Actual monetary damages plus the infringer’s profits
  4. Statutory damages
  5. Court costs and reasonable attorney’s fees

What happens if the offender is found guilty?

Under Argentine tort law, if anyone infringes copyrights and causes damages, due to negligence or with intent, the copyright holder is entitled to compensation.

The Copyright Law also establishes that the offender may be subject to criminal sanctions.

Section 71 provides that any fraud against the intellectual property rights granted by the Copyright Law is subject to the penalties established by section 172 of the Criminal Code, including imprisonment for a period ranging from one month to six years. The severity and nature of punishment may vary on a case-to-case basis at the court’s discretion.

Additionally, section 74 of the Copyright Law establishes a sanction of between one month to one year of imprisonment or a fine (the amount of which varies periodically) on anyone who, falsely claims to be the author or right holder of a work. [5]

Can Software be patented in Argentina?

According to the Law of Patents and Utility Models, computer programs, as such, are not considered inventions. However, computer programs may be patentable if they have a technical effect.

To clarify how the “technical effect” is to be interpreted, the National Agency of Industrial Property (INPI) developed a specific guideline for the evaluation of software invention patent applications. The Resolution 318/2012 states the following:

A computer program claimed as such, or as a record, will not be patentable regardless of its content. The situation does not change when the computer program is loaded onto a known computer. However, if the claimed object makes a technical contribution to the prior art, patentability should not be denied by the mere fact that a computer program intervenes in its implementation. This means, for example, that program-controlled machines, program-controlled manufacturing, or control procedures should be considered patentable subject matter. It also follows that if the claimed object encompasses only an internal control work program of a known computer, the proposed object may be patentable if it provides a technical effect. [6]

It is important to note that, when applying for an invention patent that contemplates software, it is not necessary to present or disclose the source code.

 

How to Copyright Source Code?

Now that we have a general understanding of Source Code Copyright in Argentina, let’s look into how you would actually go about obtaining one.

Registration Requirements and Process for Filing Copyright

The traditional way to protect the code of a computer program is to deposit it in the National Copyright Registry. There are 3 ways to register software with Intellectual Property:

  1. Unedited/Unpublished work: this includes those creations that the authors or holders use only for personal use or within their company. This is the most common way to copyright Software.
  2. Published work: this includes those creations that are sold, gifted, donated, distributed at no cost, etc. This procedure provides for the registration of software products made known to the public.
  3. Software contracts: licensed for use, cession of rights agreement among others.

 

Required documentation for the registration process:

  1. A completed application form (submitted in person, via post, or online)
  2. Non-refundable filing fee of 400 ARS
  3. A copy of the work and a brief description of the work and qualification of the software. Keep in mind that in order to obtain copyright registration, you will need copies of your source code and object code in executable format. It must contain the source code files, executables and frameworks necessary to run the program.
  4. DNI, LC, LE, Mercosur ID, Passport or personal ID from border nations.
  5. For the registration of the Software contracts, a copy of the contract signed by the parties. If the contract was drafted in another language, it must be translated by a registered public translator and be presented along with a copy.
  6. Non-refundable deposit

Registration Channels

  1. Online Registration through the government platform for online applications (TAD)
  2. Fill-in-Form at the Copyright Office
  3. Download paper form, fill in, and send by post to the Copyright Office (in Spanish Dirección Nacional de Derechos de Autor)

You can easily create an account at the TAD platform, fill in the form, take printouts and send them to the copyright office at their address. To download, or access the online registration process follow the link below:

https://www.argentina.gob.ar/deposito-en-custodia-de-obra-inedita-software [7]

In order to be able to enter the distance procedures, you must first register before the National Tax Agency (AFIP). Further information about this process can be found at:
https://www.argentina.gob.ar/obtener-el-cuit [8]

How long will Source Code Copyright last?

The copyright registration is effective on the date the Copyright Office received all the required documents in acceptable form, regardless of how long it takes to process the application and mail the certificate of registration. The length of processing time will depend on the amount and complexity of the material being reviewed.

Under section 5 of the Copyright Law, copyright protection is granted throughout the life of the author, and for an additional 70 years as from 1 January of the year following the author’s death. For works involving co-operation, the 70-year period begins running as from the death of the last author. If the work was published after the author’s death, the 70-year term begins running as from 1 January of the year following the author’s death.

The registration certificate of Unpublished Works must be renewed every 3 years; while the one granted for Published Works is renewed every 70 years.

Where exactly do I apply to Copyright Source Code?

You will be able to apply for copyright registration in person, by post, or online. If you are looking to hand the application in person, you would need first to make an appointment at the Copyright Office by following this link:

https://www2.jus.gov.ar/dnda-sistemadeturnosweb/.

Once the appointment has been scheduled, you would need to attend the Copyright Office located at:

Dirección Nacional de Derecho de Autor,

Moreno 1228, Ciudad de Buenos Aires

You can also send your application via post to the same address or register online through E-filing.

 

References

[1] D. Santillan, «La Nacion,» La Nacion, [En línea]. Available: https://www.lanacion.com.ar/economia/comercio-exterior/el-impacto-industria-del-software-sector-exportador-nid2167292.
[2] CESSI. [En línea]. Available: http://www.cessi.org.ar/mercados-externos-por-que-argentina-1030/index.html.
[3] «Constitución Nacional,» [En línea]. Available: http://servicios.infoleg.gob.ar/infolegInternet/anexos/0-4999/804/norma.htm.
[4] W. I. P. Organization, «Wipo,» [En línea]. Available: https://www.wipo.int/export/sites/www/copyright/es/activities/pdf/international_protection.pdf.
[5] V. M. Canese, «Copyright litigation in Argentina: overview,» [En línea]. Available: https://uk.practicallaw.thomsonreuters.com/w-010-2109?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1#co_anchor_a875385.
[6] «INSTITUTO NACIONAL DE LA PROPIEDAD INDUSTRIAL,» [En línea]. Available: http://servicios.infoleg.gob.ar/infolegInternet/anexos/205000-209999/206352/norma.htm.
[7] «argentina.gob.ar,» [En línea]. Available: https://www.argentina.gob.ar/deposito-en-custodia-de-obra-inedita-software.
[8] «AFIP,» [En línea]. Available: https://www.argentina.gob.ar/obtener-el-cuit.

 

 



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