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Peru: New guidance on the legal use of computer programs or software

INDECOPI´S Copyright Commission (Hereinafter “the Commission”) is the technical authority, competent for monitoring and protection of copyright in Peru, in this regard, it is authorized to approve guidelines, which guide economic agents in compliance with the legislation on copyright.

Thus, by Resolution No. 791-2015/CDA-INDECOPI[1], the Commission resolves to approve guidelines on the legal use of computer programs or software, in which general aspects are developed on the protection of such works, cases in which the user can be considered rights violator, capacity of the Commission to the offenses committed, among others.

The approval of the guidelines is highly important for all economic agents and especially for software users in Peru, because it provides guidelines that allow them to drive according to the provisions of the Copyright law.

Among the most important issues that develop these guidelines, we can highlight the use of illegal software by employees of a company, the right to downgrade and the subsequent acquisition of software licenses, after verifying that the user had them.

Regarding the illegal use of software by workers in teams of your company, the guidelines state that as long as the computer is destined for activities of the company, it has a duty to watch over its use. In this sense, companies must be mindful of the facilities of computer programs that make their workers in their computers. Conversely, if the case of computers owned by the worker and that are of personal use, would be exclusive responsibility of it.

Regarding the downgrade, the Commission has indicated that this power must be previously allowed by the rightholder software. That is, if the final user wishes to avail itself of the downgrade to use a program from an earlier version, supported by the license of a more modern version, must verify that under the terms of the license expressly provides for that possibility.

Another point developed by the guidelines, is related to the subsequent acquisition of software licenses, after verifying that the user did not have them. It should be noted that, according to the Commission, the act is merely an adjustment, so the violation is committed, as far as the use of the software requires prior authorization.

Thus, we must consider that in Peru, the Commission may impose the following sanctions in case of violation of copyright holders’ software: (i) provide for the immediate cessation of the infringing activity, with the deletion of programs without licenses or lawful purchase thereof; (ii) the payment to the holder of remuneration payable software, which is equivalent to the market value of unlicensed software; and (iii) a fine calculated on the illicit profit obtained by the infringer with computer programs, including the probability of detection by mitigating and aggravating factors.

Therefore, it is necessary that companies or final users of the software respect copyright holder’s software, for which now have these guidelines that allow them to know and organize in compliance with the legislation on copyright.

Ultimately, we must not forget that the guidelines are not binding, so, the Commission will assess each specific case individually and according to the events that occurred.

[1] https://www.indecopi.gob.pe/documents/20787/349958/Res0791-2015.pdf