In this article we will briefly deal with the main legal challenges of archiving software in a museum. Since copyright is the main “intellectual property” right responsible for protecting and limiting the use of software, we will primarily analyze the situation through that prism, but will mention other rights where relevant.
We will try to be as generic as possible, but since both the Computer History Museum and this article’s author are from Slovenia, this is the main jurisdiction we will concentrate on.
With the term intellectual property27 rights (IPR) we understand exclusive rights to intangible assets.
Note that the original creator – such as the author in copyright, or inventor in patents – may not always be the actual holder of these exclusive rights. They could have transferred their rights to someone else via a contract, or due to having made the subject of the rights as part of their work for their employer.
Unless the law or the rights holder give you specific rights to the related creation, the rights lie solely with their holder.
We will tackle each IPR that is relevant to archiving software in the sub-chapters below, in descending order of importance and risk.
Copyright (= authors’ rights) is the main IPR that covers software.
It covers expressions (not just “mere ideas”) and automatically starts the moment an original work of art is fixed in a medium, and is protected globally.
The originality test is important here, but also somewhat strange. On the one hand it provides the option for two identical pieces of work to exist and both carry copyright protection, as long as both authors have made their work completely independently and the similarities are accidental. On the other hand, the originality test also prevents trivial things like facts, configuration files and so on from being copyrightable.
The term of copyright in most jurisdictions is for the duration of the author’s life plus 70 years after that; or in the case where the copyright holder is a legal entity, 70 years from fixation. After that term, the work falls into the public domain and anyone can do anything with it.
Patents, at least in the EU, “do not exist on software per se”. In practice though there are several ways to circumvent this, as it is in the business interests of both some (not all) IT companies and patent offices. As such we need to also take patents into account.
In fact, in the early days of computer software there was a lively debate as to whether software should be protected by patents or copyright. Copyright won, but in the end software is the only creative work that can at the same time be protected by both copyright and patents.
A patent covers an invention, which has to be novel, have an inventive step, and be industrially applicable – mere abstracts and mathematical algorithms are not enough. In practice, it depends on how diligent the jurisdiction and patent office are at running these tests. Which means many (software) patents in the wild28 could be invalid, but someone has to bring a suit to invalidate them.
Patents have to be registered in each country where the inventor filing it seeks protection, and typically last 20 years from filing. After that they expire, and the invention falls into the public domain.
Trademarks protect the origins/branding of goods and service, marks29 those of services. In order to play their role – and therefore to be valid30 – they need to be distinctive and need to be enforced.
Typically you would register a trademark (®) for 10 years, and can renew this as often as you want. A registration is limited to the country and the classes of goods/services you filled it for.
The concept of “notorious brands” also exists, which means that if a brand is extremely well known globally its owner can prevent others from using the trademark, even for classes that the owner has not registered for (e.g. Nutella-branded keyboards).
Furthermore, the law gives certain protection also to unregistered trademarks (™) as long as the “owner” enforces that trademark.
With software you would typically run into trademarks in company, project, product and services names and logos.
Often a piece of software is useful and interesting only because of the data it manipulates. When we deal with such data we need to take into account the distinction outlined below.
Facts – and as such pure data – are not protected by copyright. But a piece of data can be protected by copyright (e.g. literary text, images, audio, video etc.), trademarks (brand names, logos) and so on.
If the data you are using is personal data, a further consideration is that you need to follow the relevant personal data protection laws, such as the GDPR.
Often data will be collected and ordered in a database. Databases as a whole are often protected by database rights, such as the Database Directive in the EU31, while (some narrow) copyright may still apply to an original arrangement, selection and presentation of data.
According to the Database Directive, database rights last for 15 years and are automatic. Each time a database is substantially modified, however, a new set of rights are created for that database. An owner has the right to object to the copying of substantial parts of their database, even if data is extracted and reconstructed piecemeal.
Often a computer program will have a (graphical) user interface. The following rights can apply to the general “look & feel” of a piece of software or webpage:
In practice, though, these are unlikely to cause issues for presenting software in a museum or archive.
Although not something you would encounter often when archiving software, computer museums still have great interest in different hardware schematics, circuit plans, etc.
These can be protected by different integrated circuits rights. In the US these are commonly referred to as “mask works”, whereas in the EU we talk about “legal protection of topographies of semiconductor products”. Such rights are typically more limited than copyrights or patents, and in several jurisdictions they are automatic.
Internet domain names do not fall squarely into any other IP rights, though the European Court of Human Rights ruled that they are “property” (ECHR: Paeffgen GmbH vs Germany 25379/04). In practice, trademarks can be used as legal defense in domain name disputes.
Unless you are the actual rights holder, you need to obtain the rights through a license or otherwise.
There are two ways that a piece of software can be free to use by everyone in a reliable and legal fashion.
The first is that the copyright and eventual patents in the software – perhaps even trademarks, but these are of lesser concern – have already expired. This means that the software has fallen into the public domain32 and is now free to use for everyone.
The other option is that the software is released as Free and Open Source Software (FOSS). Since FOSS gives all the recipients freedoms to use, study, share and improve, this is more than enough (by far) for a museum to work with.
Another way that software can be used for free by anyone is based on the related statutory limitations and exceptions, and thus we are given these rights by the law itself 33.
Communication to the public on screens (ZASP34, §49.b) could be used for exhibitions, but for certain in order to give people access (to software or other material) via a computer screen to research and learn from the exhibit.
Private and other internal reproduction (ZASP §50) allows public museums, archives, etc. to make copies on any medium, under the condition that they do so from a copy they already own and that they are not making a profit with the reproduction.
Free reproduction and offering to the public of orphan works (ZASP 50.a) can be used when a work without a known author is found. In such cases the law permits public museums, archives and so on to digitize, freely reproduce, display and even distribute the work in question. However, the law does prescribe a careful search and logging process that needs to be followed in such cases. A further and significant complication is that §50 does not count software as potential orphan works, and it would make sense to propose a change of law here.
Since very little software is already in the public domain and ZASP does not have many exceptions for software, you will most likely need to obtain a license.
When you negotiate a license with the rights holders, it is important to think broadly and include the general public, or other museums/archives, at the very least.
As such, the easiest way to obtain all needed rights possible would be to negotiate a FOSS license. The more permissive35 the license, the fewer limitations you (and others) would run into when using the procured software.
If that is not possible, try to negotiate a custom license for museastic (and archival) purposes. Limiting the license to this specific use case would still enable other museums (and archives) to use this work, and also clear any potential issues with your museum having an exhibition elsewhere.
In exceptionally difficult negotiations, an option is to put the software under escrow and/or temporary NDA. That way you could secure the software in your museum/archive and agree with the rights holder to release it (ideally as FOSS) to the public after a certain amount of time has passed or a certain condition has been met.
If the software in question was written or procured by a public body, one might be able to use the Public Information Access Act (ZDIJZ) to request the source code and the rights to reuse.
EU-wide this is known by the slogan Public Money, Public Code, and in some countries (e.g. Italy, France) the law explicitly requests this. In Slovenia the law does not explicitly mention software, but a reasonable interpretation could lead to this, although it has not yet been tested in court.
Online repositories as source code forges (GitHub, GitLab, etc.), image galleries, social media websites and so on all have their Terms of Service. Even if you are a museum, these apply and often include IP rights.
Moreover, when working in this context it is likely that you will eventually be faced with complaints and requests to take down (claimed) copyright violations and remove personal data (under the GDPR) – so be proactive and have a policy on how to handle these.
27. The term, while already well established, is somewhat misleading, since property deals with tangible and rivalrous goods, while intellectual property deals with non-rivalrous and intangible goods. Creating a copy of a book does not take the book away from its original owner. In this effect it is a means to artificially create scarcity where naturally there would be none.
28. Due to the rise of non-practicing entities (“patent trolls”), several patent pools and protection schemes have emerged. Open Invention Network and LoT Network are worth mentioning here, which have many members and complement each other.
29. To simplify we will use the term “trademark” for both.
30. If a trademark has been used so broadly the average consumer does not connect it with a specific brand/origin anymore, we call that a dilution of a trademark and it loses its force. In Slovenia the words “superga”, “edigs”, and “selotejp” are now generic terms, similar to “kleenex” or “sellotape” in English.
31. In the US databases receive very limited copyright protection, and broadly speaking in practice the two solutions play out somewhat similarly.
32. In certain jurisdictions like the US and the UK it is possible for an author to dedicate their work to public domain, waiving their copyright. But in the majority of the world (incl. continental Europe) that is not possible due to inalienable moral rights. As a work-around licenses like CC0-1.0 and Unlicense can be used.
33. The English translations of §49.b and §50.a titles are mine, as I could not find an (un)official English translation of them yet.
34. Copyright and Related Rights Act (Slov. Zakon o avtorski in sorodnih pravicah).
35. Such as CC0-1.0, Unlicense, MIT, BSD-2-Clause, BSD-3-Clause, or Apache-2.0. If there are still active patents, Apache-2.0 is a good choice (and avoid CC0-1.0 in that case).