A number of important issues that should be addressed in modern copyright laws are analyzed below in the light of the prevailing international trends. It is a clear trend today that national laws expressly include computer programs as protected works of a kind and thus there is no doubt that copyright protection applies to such programs, provided that they are original. Not all national laws define programs and some of the definitions differ in their wording, but a fairly generally applicable definition would be “a ‘computer program’ is a set of instructions expressed in words, codes, schemes or in any other form. This definition reflects all the essential elements of the notion of computer programs.
The implication of this categorization of computer programs as literary works (writings), depends on other related provisions of the respective laws and on the practice adopted in successive court decisions. It should be kept in mind that this categorization of programs indicates that the level of originality required as a prerequisite for protection should not be different from that required for other writings. The protection of programs as writings entails, furthermore, that the rights pertaining to copyright protection also apply to such programs. The right of reproduction, the right of distribution of copies and the right of communication to the public should be appropriate.
The most important issue concerning the right of reproduction in copyright laws is the question of in which cases it is justified to authorize reproduction without the authorization of the right-owner. The international norm which is applicable is Article 9(2) of the Berne Convention.
National laws may permit reproduction of literary and artistic works in certain special cases, provided that such reproduction does not disagreement with a normal exploitation of the work and does not unfairly prejudice the legitimate interests of the author.
It is obvious that copying should be allowed if it is indispensable for the use of a program in conjunction with a machine for the purpose and to the extent of use for which the program has been lawfully obtained. It also seems justified to allow making a “back-up copy” for archival purposes for cases where the replacement of the program may become necessary.
Decompilation of computer programs means reproduction and adaptation of computer programs into a form in which the coding as well as structure of the program can be examined and analyzed. Decompilation by lawful owners of computer programs should be allowed, since it would not conflict with any normal exploitation of the program and would not cause any unreasonable prejudice to the legitimate interests of copyright owners.