Re: [OT] Droit d'auteur vs. free software? (Was: query from Georg Greve of GNU about Debian's opinion of the FDL

[Stephane Bortzmeyer <bortzmeyer@debian.org>]

On Wed, Apr 30, 2003 at 11:00:48AM -0400,
 Jeremy Hankins <nowan@nowan.org> wrote 
 a message of 15 lines which said:

> Since there's been a lot of talk about the difficulty in making a
> distinction between software and non-software, do you know how the law
> you're referring to makes this distinction?  Where would fonts,
> javascript embedded in html, latex source, postscript, etc, fit into
> this scheme?

Tough question. I just studied it and here is the result (warning:
most software engineers will not find the reply satisfactory, see the
soap box).

<legal>Remember, IANAL.</legal>

First, the only pan-European text I can find is "Council Directive
91/250/EEC of 14 May 1991 on the legal protection of computer
programs"
<URL:http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=31991L0250&model=guichett>.
This directive, which every European Union country is supposed to
implement, says only one thing which seems related to your question:

>Whereas, for the purpose of this Directive, the term 'computer
>program` shall include programs in any form, including those which are
>incorporated into hardware; whereas this term also includes
>preparatory design work leading to the development of a computer
>program provided that the nature of the preparatory work is such that
>a computer program can result from it at a later stage;

It clearly does not address your problem. Let's turn now to
French-specific law. There is no general definition of a program (see
the soapbox later). The closest things we find are:

* JONC, 17 janvier 1982, p. 624. A terminology document (French
language is specified in the "Journal Officiel", the paper which
publishes laws and decrees...) which says that "Logiciel [software]:
L'ensemble des programmes, procédés et règles et éventuellement de la
documentation, relatifs au fonctionnement d'un ensemble de traitement
de l'information."

* BODGI 4 C-7.84. A tax regulation about software which gives a
definition (almost the same).

In both cases, the associated documentation is mentioned (which seems
that the case of the Emacs manual is settled: it is regarded as a
program and hence not subject to the full extent of moral rights).

The case of documentation embedded in a program (Lisp or Python
docstrings) is also quite clear: it is part of the program.

The case of a text outside of a program (such as a lecture on dynamic
routing like
<URL:http://www.nic.fr/formation/supports/formation-routagedyn/> which
is under the GFDL) is still open but it is clearly not software.

The funny cases like a novel implemented as an ebook are still open.

Soap box: law is not computer science. Most terms used in law are
never defined somewhere. This is because, unlike programs, law is
processed by humans, not by computers. And it is also because it needs
to be flexible enough to cover future cases without requiring an
update of the law (it would be ridiculous to write in law texts a list
of technologies such as a list of file formats, for instance: it
changes too fast).