Installment and use of computer programs without their author's prior consent

By decision of April 28, 2006, the Civil Court of Appeals (the “Court”)[1] ordered Anselmo Gerencia de Riesgos S.A. to pay Microsoft Corporation for damages caused by using software owned by Microsoft without prior authorization.[2]

The evidence produced in the case showed that it was the defendant (and not the company Motorcare S.A. with whom Anselmo shared its offices) who unlawfully installed and used the Microsoft computer programs.

The Court also declared that to avoid any liability the defendant should have proved that the “…computer programs did not belong to Anselmo or the material impossibility of using them”.

In general, the Court resolved the controversy correctly when considering that, in accordance with the current Argentine copyright regulations, computer programs are intellectual property works that can not be used without their author’s prior consent.[3]

However, the facts which in the opinion of the Court would have helped the defendant avoid copyright infringement do not seem to fall within the Argentine copyright system.

The clarifying statement (or “declaración concertada”) referred to Section 1.4 of the WIPO Copyright Treaty [4] expressly declares that the sole installment of a computer program, without the proper authorization, constitutes an infringement of the author’s exclusive reproduction right.

Such statement declares the following: “The reproduction right set in Section 9 of the Berne Convention, as well as the exceptions provided therein, applies to the digital environment”. The WIPO Copyright Treaty also adds that the contracting parties understand that the digital storage of a protected work by an electronic means constitutes a “reproduction” in the sense of Section 9 of the Berne Convention.[5]

In quantifying damages, the Court mentioned that the plaintiff must receive the benefit it could have obtained if the infringement would not have occurred or at least the highest amount it should have collected if the defendant had obtained the proper authorization.