Vol 7 No 1 - Roger Williams University School of Law

competition policy.130It is in this light that the suitability of the UCITA provisionsmust be examined. The debates about what type of intellectualproperty protection is appropriate, particularly in an electronicenvironment, have been occurring on an international as well asdomestic basis. UCITA has a direct effect on that debate, sinceUCITA allows individual licensors to “preempt” that debatethrough licensing.First, of course, it is necessary to determine under existinglaw those rights that cannot be changed by contract. Europeanlegislation grants certain rights to copyright users, for example,that do not depend upon contract for their existence. Four areincluded in the European Software Directive:131 (i) the right tomake a back-up copy;132 (ii) the right to observe, test or study acomputer program;133 (iii) the right to test for error correction;134and (iv) the right to “decompile” or reverse engineer.135 TheSoftware Directive, however, is silent on whether these limits maybe waived or varied by contract. Rights under the EuropeanDatabase Directive include the right to perform acts inherent tonormal usage,136 and the right to re-utilize substantive parts of adatabase.137 Similarly, the law of other countries, in setting out130. The use restrictions and restrictions on assignability are particularlyegregious to some. As one writer has noted:Software publishers expanded copy-use licensing objectives fromprotection against copying to shielding their programs from product-linecompetition, regulating development of interoperable products, andprotecting information content not protected by copyright. Other use andtransfer restrictions are employed to differentiate, and thereby pricediscriminate between, user markets . . . . [and] foreclose the development ofproduct resale or system maintenance competition.Rice, supra note 11, at 281; but see Dessomentet, supra note 104, at 75 (“The veryexistence of a well-developed body of unfair competition law supplementing theunavoidable loopholes of the statutory intellectual property rights prevents Europeansfrom viewing the legislative protection of IP rights as an implicit exclusion of all otherprotection by means of contractual rights.”).131. Software Directive, supra note 129.132. Id. at art. 5(2). That right “may not be prevented by contract insofar as it isnecessary for that use.” Id.133. Id. at arts. 5(3), 9(1).134. Id. at art. 5(1).135. Id. at arts. 6, 9(1).136. Council Directive 96/9/EC of 11 Mar. 1996 on the Legal Protection ofDatabases, 1996 O.J. (L 77) 20, art. 6(1) [hereinafter Database Directive], available athttp://europa.eu.int/index_en.htm.137. Id. at art. 8 (noting that the right may not be overridden).