Re: 91/250/EEC Can HTML Code be a Computer Program?


Subject: Re: 91/250/EEC Can HTML Code be a Computer Program?
From: Nico Hollebeek (holbeek@xs4all.nl)
Date: ti 21 heinš† 1998 - 17:29:45 EEST


Regarding your question, I see 3 sub-questions:
1. What is a computer program?
2. Is a web page, written in HTML with or without Javascript, a computer
program?
3. What are the consequences of the answer to question 2?

ad 1). The definition of a computer program is a.o. discussed by B.
Czarnota, R.J. Hart, Legal protection of computer programs in Europe: a
guide to the EC directive (Butterworths, 1991).

They write: 'the Directive does not include a definition of a computer
program'. They cite Part Two of the original proposal: 'It has been
specifically recommended by experts in the field that any definition in a
directive of what constitutes a program would of necessity become
obsolete as future technology changes the nature of programs as they are
known today'.

The Explanatory Memorandum of the original proposal defines the word
"program" as including 'the expression in any form, language, notation or
code of a set of instructions, the purpose of which is to cause a
computer to execute a particular task or function'.

ad 2). The original function of web pages was displaying hypertexts. Now,
tasks and functions include information, amusement and selling. So, as
the HTML-code of a web page is a set of instructions to execute a
particular task or function, a web page can indeed be regarded as a
computer program in the sense of the directive.

ad 3).
A necessary consequence is, that the permanent reproduction, translation,
adaptation, arrangement and any other alteration are the exclusive rights
of the author. According to article 5, these actions do not require
authorization of the rightholder 'where they are necessary for the use of
the computer program by the lawful acquirer in accordance with its
intended purpose' and 'in the absence of specific contractual
provisions'. By making the web page accessible on the Internet, the
rightholder implicitly gives his consent to downloading the page. This
may be different if downloading is restricted by the rightholder, for
example by means of subscriptions, passwords, credit card numbers etc.

Another consequence is the following. If an arbitrary text is surrounded
by <HTML> and </HTML> it would be automatically transformed into a
computer program, and it may receive another kind of copyright
protection.
To undo this undesirable consequence one could diffentiate, in my
opinion, the HTML-instructions regardless of the embedded text with the
text it operates on.
Both are to be regarded as works, the HTML-instructions as a computer
program and the text as text with its own requirement of originality.

Regards,
Nico Hollebeek

/\ Mr N.J. Hollebeek, Gouda, the Netherlands
\/ Informatics, Law and Quality assurance
/\ email to holbeek@xs4all.nl
\/ homepage "rechtSlinkS" at www.xs4all.nl/~holbeek



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