Contents. Editors and Contributors... VII Introductory Note... X
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1 Contents Editors and Contributors... VII Introductory Note... X Approaching Software Law (Radim Polčák)... 1 International Protection of Software (Tereza Kyselovská) Country Reports Argentina (Zang, Bergel & Viñes Abogados) Austria (Schmidtmayr, Sorgo, Wanke) Canada Ontario (Shibley Righton LLP) Canada (Miller Thomson LLP) Colombia (Rodríguez & Cavelier) Czech Republic (ROWAN LEGAL) Denmark (Advokatgruppen) France (Jobard, Chemla & Associes) Germany (Schalast & Partner Rechtsanwälte) Hong Kong (Fairbairn Catley Low & Kong) Hungary (Csabai & Partner) Italy (Astolfo Di Amato & Associati Avvocati/ Jenny & Partners) Japan (Ushijima & Partners) Luxembourg (Felten & Associés) New Zealand (Lowndes Associates) Poland (WKB Wiercinski, Kwiecinski, Baehr) Portugal (Abreu Advogados) Russia (Yust Law firm) Singapore (Donaldson & Burkinshaw) Slovakia (ROWAN LEGAL) South Africa (Garlicke & Bousfield Inc.) Thailand (Tilleke & Gibbins) United Kingdom (Martineau and Penningtons Solicitors LLP) V
2 Contents USA (Duane Morris LLP/Frost Brown Todd LLC) Comparative Analysis (Matěj Myška, Jaromír Šavelka) Disclaimer VI
3 Editors and Contributors Editors: JUDr. Josef DONÁT, LLM, partner at ROWAN LEGAL, Prague JUDr. Martin MAISNER, PhD., partner at ROWAN LEGAL, Prague JUDr. Radim POLČÁK, Ph.D. head, Institute of Law and Technology (ILT), Faculty of Law, Masaryk University, Brno Contributors (Masaryk University): JUDr. Bc. Tereza KYSELOVSKÁ, Department of International and European Law, Faculty of Law, Masaryk University, Brno Mgr. Matěj MYŠKA, Institute of Law and Technology, Faculty of Law, Masaryk University, Brno Mgr. Jaromír ŠAVELKA, Institute of Law and Technology, Faculty of Law, Masaryk University, Brno Contributors of the MULTILAW network: ABREU AVOGADOS Portugal, Lisbon Also in Porto-Portugal, Madeira & Angola ADVOKATGRUPPEN Denmark, Aarhus (Also in Copenhagen, Fredericia, Horsens-Denmark & Luxembourg) ASTOLFO DI AMATO & ASSOCIATI AVVOCATI Italy, Rome (Also in Milan & Naples) CSABAI & Partners Hungary, Budapest DONALDSON & BURKINSHAW Singapore VII
4 Editors and Contributors DUANE MORRIS LLP USA, Pennsylvania (Also in California, Delaware, Florida, Georgia, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Texas, Washington D.C.-USA, UK, Singapore & Vietnam) FAIRBAIRN CATLEY LOW & KONG Hong Kong (Also in Shanghai-P.R. China) FELTEN & ASSOCIES Luxembourg FROST BROWN TODD LLC USA, Ohio (Also in Indiana, Kentucky, Tennessee & Washington D.C.) GARLICKE & BOUSFIELD INC South Africa, Durban JENNY & PARTNERS Italy, Milan JOBARD, CHEMLA & ASSOCIÉS France, Paris LOWNDES ASSOCIATES New Zealand, Auckland (Also in Wellington) MARTINEAU United Kingdom, Birmingham (Also in London) MILLER THOMSON LLP Canada, British Columbia (Also in Alberta, Ontario, Saskatchewan & Quebec) PARRA, RODRÍGUEZ & CAVELIER Colombia, Bogotá D.C. (Also in Medellín) PENNINGTONS SOLICITORS LLP United Kingdom, London (Also in Basingstoke & Godalming) ROWAN LEGAL Czech Republic, Prague (Also in Brno, Ostrava Czech Republic & Bratislava Slovakia) SCHALAST & PARTNER RECHTSANWÄLTE Germany, Frankfurt (Also in Berlin & Dresden) VIII
5 Editors and Contributors SCHMIDTMAYR SORGO WANKE RECHTSANWÄLTE OEG Austria, Vienna (Also in Brno-Czech Republic) SHIBLEY RIGHTON LLP Canada, Ontario TILLEKE & GIBBINS INTERNATIONAL LTD Thailand, Bangkok (Also in Phuket) USHIJIMA & PARTNERS Japan, Tokyo WKB WIERCINSKI, KWIECINSKI, BAEHR SP.K. Poland, Warsaw (Also in Poznan) YUST LAW FIRM Russia, Moscow (Also in Kiev & Donetsk-Ukraine) ZANG, BERGEL & VIÑES ABOGADOS Argentina, Buenos Aires IX
6 Introductory Note This book has been put together by the efforts of the lawyers from member firms of MULTILAW in 24 jurisdictions and the legal experts from the Institute of Law and Technology, Faculty of Law, Masaryk University, in order to provide academics and practitioners in the field of ICT law with basic comparative information on fundamental questions of software protection in different jurisdictions worldwide. Cooperation of practising lawyers and academics on this book was quite unique. Under normal circumstances, legal practitioners provide rather material support while the academics work on the content. At this time, the academic part of the team provided just system, methodology and synthetic parts, while the practitioners in fact took care of the very comparative content. Moreover, the funding of this publication was not educational, as it is usual in similar cases, but it was provided by an academic research project of the Czech Ministry of Education and the ESF through operational funds. This funding allowed the team to work without any immediate economic pressure and to focus on the content rather than on marketing or commercial aspects of the outcome. It is now purely upon the readers to assess whether this rather unusual model is successful. In any case, we do hope that the readers find this book at least as interesting, challenging and inspiring as it was interesting, challenging and inspiring for us to work on it. For the authors Josef Donát Martin Maisner Radim Polčák Martin Maisner on MULTILAW: The IT world is more globalised than other branches of industry and this material started as an exchange of information between specialized attorneys in order to enable the clients of MULTILAW member firms to make a qualified choice of law in particular cases. What is MULTILAW? MULTILAW was founded in 1990 on the premise that a number of carefully selected independent law firms can work together to fulfill clients international needs. Today, it has over 6,000 lawyers in over 150 commercial centers throughout the world. Our mission is to help our members provide the best service possible to clients everywhere, every day. The purpose of MULTILAW is to assist and support its member firms in the development and improvement of their practices X
7 Introductory Note through a variety of resources and programs and to evolve and change in response to the needs of members, so that they, in turn, can provide the best service for their clients. MULTILAW member firms are carefully chosen. To be invited to membership, a firm must not only have the highest standards of ethics and quality, it must also be able to service the full needs of the typical international business client and have a good personality fit with the member firms. It is MULTILAW s philosophy that the best professional relationships are based on the closest personal ties. The MULTILAW Association is non-exclusive, and each member is free to call on other members for assistance as its clients needs and best interests dictate. Each firm is wholly independent from the other, accepting separate instructions to act, and is solely responsible for the quality of its work. With this independent status, MULTILAW members can adopt innovative approaches, reflecting the rich diversity of the cultures which make up MULTILAW. Their combined knowledge and talents provide the world-wide perspective clients need and the local service clients require. MULTILAW co-operation enabled to gather the information about software regulation in each jurisdiction, to record it in the same format and to compare it. The co-operation with MUNI law school created ground for analysis and qualified comparison as presented further in this book. Radim Polčák on ILT Institute of Law and Technology: The Institute of Law and Technology (ILT) has been established at the Faculty of Law, Masaryk University, on 1 January 2010 as the first academic institution of the Czech Republic focusing on technology-related law and legal science. Its main areas of pedagogical, scientific and expert activity are the law of information and communication technologies, legal informatics and special disciplines of technology law, i.e. energy law, law of specific production etc. ILT is the main organizer of permanent international symposium Cyberspace and of the national conference Czech Law and ICT. It issues the international scientific journal Masaryk University Journal of Law and Technology, Czech national journal Revue of Law and Technology and participates through its members on numerous international scientific associations like European Academy of ICT Law, European Law Institute, LexConverge, etc. and on a project consortia including CONSENT, SMART, LAPSI and others. ILT is also active in advising Czech govern- XI
8 Introductory Note mental and judicial bodies like the Ministry of Justice, the National Security Office and others and actively participates on the intergovernmental organizations (in particular, IL participates as observer at UNCITRAL WG III and IV). Since 2009, ILT is the project leader of development project of Operational Programme (ESF funded) Education for Competitiveness No. CZ.1.07/2.2.00/ that has contributed also on the issue of this book. XII
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