How does software licensing work in Brazil?

Question

What is important to know before licensing a computer program in Brazil?

I really need to use a license?

What is and how the free software system works?

Answer 1

WARNING: This community wiki is not 100% ready, and even by its nature wiki, will never be. It was originally written from an extensive research conducted by a lawyer (the author of the question, someone who is still learning to program, with the invaluable help of Sopt), but not by a specialist in this specific subject. If there are doubts, it is always interesting to seek a lawyer specialized in the subject, of your trust, and submit your specific case to a rigorous analysis. You are invited to edit this text if you find any inaccuracies (even the slightest spelling or grammatical correction), or to include any content that might add relevant information. To do this, simply click on "Edit" at the end of this wiki.

Introducing

This research arose as a result of the attempt to answer this question satisfactorily, but as the answer was getting too great, by the need to explain a series of concepts without which it would be impossible to understand what they are, and mainly, where act free software licenses, so I decided to publish a more detailed study as community wiki.

To properly understand how free software licenses work, which rights they actually soften, and where they specifically act, it is necessary to fix before four very important concepts (I tried to use the minimum of legal terms, but in some cases it was impossible...):

• computer program
• patent
• copyright
• public domain.

Then we go to them:

Computer program

The definition is found in the Law 9.609/98:

Art. 1st Computer program is the the expression of an organised set of instructions in natural or codified language, contained in physical support of all kinds, for use in automatic information-processing machines, peripheral devices, instruments or equipment, based on digital or analogous techniques to make them work in a specific way and for specified purposes.

Deeply analyzing this definition would give an entire article, then, simplifying: any Hello Word of life is a computer program for the legal definition (I need to check this - and other things - so anyone who can collaborate, feel free to edit this wiki).

The computer program can be registered at the INPI, to attest to the authorship.

Patent

To patent is a public concession, which guarantees its holder the exclusivity to commercially exploit a technological innovation.

THE INPI nay carries out the "pure" software patent registration. Registration is possible only as a way to protect yourself in court disputes against third parties, but it does not guarantee exclusivity in the exploitation of a technological innovation.

This is because the Law 9.279/96 (Industrial Property Act) expressly states that:

art. 10. No invention or utility model:

V - computer programs itself;

In 2012, the INPI even opened a public consultation on patents involving computer programs, but as far as I know the idea did not go forward after receiving a lot of criticism. In the INPI’s own website, in the section where the registration of computer programs takes place, there is only the possibility of registration to "guarantee greater security", and not patent.

This means that if you have created a different functionality for a program that has multiple competitors in the market, you nay will have exclusivity on her. Your competitors can immediately enter the same functionality as long as they have the technology (and the creativity, if any) for this.

What they cannot, as we shall see ahead, is to catch the your code (by legal means - simply opening the source in an HTML page - or not - stealing it anyway) without your authorization, and put to work in the competitor. But they can, by seeing the functionality on their site, create an equal by their own means.

The only exception is when the software is intimately associated with a particular hardware, and dependent on it (we also need to delve into it) for example XXXXX). However, in any case, in practice the patent that is registered is of the hardware, including a specific software associated with that hardware.

Simply put: in general you can copy any idea/innovation from a software (but I advise you not to see the sources!), and can be copied.

Copyright

It is the set of rights of an author on the work of his creation. In Brazil, it is governed by Law 9,610/98, which expressly includes "computer programs" as protected works (art. 7, inc. XII).

Since the High Court of Justice recognised the legal nature of intellectual (and non-industrial) property for computer programs (Resp 443.119/2003), a solid jurisprudential current is formed in this sense, stating that the computer program has a legal nature of copyright, applying to it the same legal regime of literary works.

So it is precisely in the scope of copyright that the licenses apply; they make no difference in the question of exclusivity (patent) here in Brazil (where you will not have it anyway).

So when you create a "computer program" (any Hello word! of life), its creation is protected by 9.610/98 and 9.609/98.

And that even without you having held any record, regardless of your will:

art. 18. The protection of the rights dealt with by this Law is independent of registration.

The registration in the INPI may be important to prove the authorship of the program, but according to the Law is only one option:

Art. 19. It is made available to the author to register his work in the public body defined in the caput and in the § 1º of the art. 17 of the Law nº 5.988, of December 14, 1973.

There are other possible ways to prove the authorship of a program - some say just send a simple email to yourself - but you can even register on paper in a notary office (thus proving the date of publication and authorship)or even simply host on an established and reliable server (which may eventually attest to the date the files were uploaded to the server).

However, as it is not so expensive (relatively), I believe that the most suitable is to register by the INPI, since the Regulatory Decree 2256/98 specifically established that:

"Art. 1º The computer programs may, at the discretion of the holder of the respective rights, be registered at the National Institute of Industrial Property - INPI.".

And what rights are reserved?

The law divides copyright into moral and patrimonial. Moral rights are irrevocable and inalienable (see all moral rights of the author in art. 24 of Law 9,610/98.)

However, in the specific case of computer programs, Law 9,609/98 retained only two of the author’s moral rights:

§ 1º The provisions concerning moral rights do not apply to the computer program, except at any time for the right of the author to claim paternity of the computer program and the right of the author to object to unauthorised amendments where they involve deformation, mutilation or other modification of the computer program, which harm their honour or reputation. (The end of this paragraph is very reminiscent of the BSD license, as we will see below)

Among the property rights of the author (Law 9,610/98) are:

Art. 29. Depends on prior and express authorisation the author’s use of the work, by any means, such as:
I - a partial or full reproduction;
II - the edition; [...]
VI - to distribution, when not intrinsic to the contract signed by the author with third party for the use or exploitation of the work;
VII - the distribution to the provision of works or productions by means of cable, optical fibre, satellite, waves or any other system that allows the user to perform the selection of the work or production to perceive it in a time and place previously determined by whom formulates the demand, and in the cases in that access to works or productions is made by any system which import in payment by the user;

"Icing on the cake" of copyright protection of computer program are the criminal implications:

Art. 12. Copyright infringement of computer program:
Feather - Detention of six months to two years or fine.
§ 1 If the violation consist in the reproduction, by any means, of a computer program, in whole or in part, for trade purposes, without express authorisation of the author or of the person representing him:
Feather - Imprisonment of one to four years and fine.
§ 2º Na same penalty of the previous paragraph sells, expose to sale, introduce into the country, acquire, conceal or deposit, for trading purposes, original or copy computer program, produced with copyright infringement.

So, and briefly (as far as possible) these are the rights that free software licenses intend to "soften".

To have these rights you do not need to do anything, no registration is necessary to have the rights protected (but if there is a dispute of authorship you will be a happier person if you have made the registration ;) ).

So, at this extreme we have the proprietary license, with all rights reserved , prediction of cataclysmic wars in the Courts to attest to the "paternity of a software" (which in Brazil still crawls, but in the US is already an industry), people prosecuted, stagnation of technology...

But who buys milk from children. :-)

Public domain

At the other extreme is the availability by public domain, in which absolutely no right is reserved, not even citation of the original author.

There is little milk for children here, however:

The public domain is the basis of our self-understanding, expressed by our shared knowledge and culture. It is the raw material from which the new knowledge is derived and the new cultural works are created. The public domain acts as a protection mechanism to ensure that this raw material is available at the cost of its reproduction - close to zero - and that all members of society can build on this content. (The Public Domain Manifesto)

The public domain is inevitable after a certain time of the author’s death (here in Brazil 70 years since death, and in the case of computer programs, 50 years from the first day of the year following publication, or creation, if not published).

The computer program, inclusive, is not defined as public or private good; it notes a mixed nature, which involves temporality, and "can be put as a good of temporary privilege" (fls. 04).

But it is possible that you make your work available under the public domain if you want, simply create (and preferably register together with the program in the INPI) a license for which you waive any available copyright (in Brazil I am not aware of any, but a foreign example of software made available by public domain is the sqlite).

The licenses of free software

Transiting between these two extremes (proprietary license X public domain) is the free software movement, which has in the Free Software Foundation its origin and maximum expression.

The philosophy of free software is based on four fundamental freedoms:

• Freedom 0: The freedom to run the program, for any purpose.

• Freedom 1: The freedom to study how the program works and adapt it to your needs.

• Freedom 2: The freedom to redistribute copies.

• Freedom 3: The freedom to perfect the program, and release its improvements.

Free software licenses are divided into three major groups: the permissive, as partial reciprocal, and the total reciprocal.

Basically, all these licenses are just texts that seek to standardize the use of software licenses more permissive than the owner, and less than the public domain.

You can perfectly create your own license, using or not excerpts from others. You can, for example, create a license that is in part MIT, in part Creative Commons, and also include any conditions (as long as they are valid by legal order) you want.

Or create a proprietary license, and allow only one or other specific freedom of use.

The only problem you can have is if you are using another base program, which already has an associated license and requires your program to follow the same rules (here we also need to deepen more).

Let’s look at a summary of the main licenses of each group, but instead of commenting on each one, I will just include an excellent framework created on the site Choose a License, which, by the way, is licensed under Creative Commons Attribution 3.0 Brazil, which gives us the right to do so since we inform if there has been a modification (NO), that we inform the credit (checked) and a link to the license.

Permissive

They are the licenses with the smallest restrictions, even allowing derivative works to be distributed by a closed license. They are among them:

• BSD License 9

• MIT License

• Apache License V2.0

Full reciprocal

They are the most restricted free licenses. In general, they require distribution to be done with the same license as the original.

Are among them:

. LPG 2.0

Partial reciprocal

The difference between this and the previous one is that "if the modifications were used as a component of another software project, this project need not necessarily be made available under the same license." (Wikipedia)

. GNU Library or Lesser General Public License (LGPL)

. Mozilla Public License 1.1 (MPL 1.1)

. Eclipse

CREATIVE COMMONS

Creative Commons licenses are quite broad, and can range from full permission (in the by-sa which is similar to an MIT license), up to almost a closed license (in the mode by-nc-nd), allowing only distribution, without allowing any modification or commercial use (also called "free advertising").

Behold here the Creative Commons license types, or answer some basic questions and automatically generate one here.

How to choose a free software license

This can be really very complex and devious, especially if you are using several base codes, with several different licenses assigned to them.

However, the best study on this topic I have found so far, contains an excellent flowchart (also published on wikipedia), which can help a lot in choosing:

Also noteworthy is this table (same source), very useful to analyze the differences and compatibility between licenses:

This wiki does not exhaust the theme, and I intend to work on it more in the future, and I invite all interested parties who can collaborate to do so without a second thought. Remember that any edit can be reversed, so don’t be shy about editing what you find inaccurate/incorrect.

Sources:

Imagery:

• http://upload.wikimedia.org/wikipedia/commons/d/d4/Mecanismo_de_seleção_3.png

• http://en.wikipedia.org/wiki/Free-software_license

Articles:

• http://forum.openstreetmap.org/viewtopic.php?id=30131

• http://en.wikipedia.org/wiki/Free-software_license

• http://en.wikipedia.org/wiki/Public_domain

• http://www.infowester.com/freexopen.php

• http://sejalivre.org/voce-conhece-as-licencas-de-software-livre-ja-esta-na-hora-de-saber-ne/

To learn more about copyright, see this article on the ECAD website:

• http://www.ambito-juridico.com.br/site/? n_link=revista_artigos_leitura&artigo_id=10902&revista_caderno=17

Scholarly work:

• http://ccsl.ime.usp.br/files/relatorio-licencas.pdf

• http://direitorio.fgv.br/sites/direitorio.fgv.br/files/Manifesto%20do%20Dominio%20Publico%20-%20Portuguese%20Version_0.pdf

• http://www.teses.usp.br/teses/disponiveis/45/45134/tde-14032012-003454/publico/MestradoVanessaSabino.pdf (thesis cited in the comments of the question)

• http://www.eduvaleavare.com.br/wp-content/uploads/2014/07/software.pdf

• http://jus.com.br/artigos/10312/a-protecao-juridica-do-software-com-enfase-em-patente