問24
頻出度★★★
ソフトウェアの開発を外部ベンダに委託する。委託契約において特段の取決めがない場合，このソフトウェアの知的財産としての権利の帰属を規定している法律はどれか。
平成24年度 秋期 ITパスポート試験 問24
ストラテジ系法務 › 知的財産権
This question's explanation and your answers so far.
解説
問 24
Incorrectア
Incorrect. The Subcontract Act (formally, the Act against Delay in Payment of Subcontract Proceeds, etc. to Subcontractors) is a law that prevents a main contractor from exploiting its superior position over its subcontractors. It regulates the fairness of transactions — the payment date of subcontract proceeds, the duty to issue a written document, and the prohibition of refusing receipt, reducing the payment, or beating down the price. It deals with the terms of a transaction and is not a law that determines who owns the intellectual property rights in the deliverables.
- イ
正解 The correct answer is イ. Software is listed as protected subject matter under the Copyright Act as a “program work,” and it is also the Copyright Act that determines whom the rights belong to (attribution). A copyright requires no procedure such as registration; it arises automatically at the moment the work is created (the principle of no formalities), and in principle it belongs to the person who actually created it. When development is outsourced to an external vendor, it is the vendor that actually creates the program, so unless the outsourcing contract contains a special provision on assigning or sharing the copyright, the copyright remains with the vendor. If the outsourcing party (the client placing the order) wants the copyright to belong to its own company, it must state explicitly in the contract that the copyright is assigned — that is the key point of this question.
Incorrectウ
Incorrect. The Unfair Competition Prevention Act treats acts of unfair competition — improperly acquiring, using, or disclosing a trade secret, acts that cause confusion with a well-known product indication of another party, and imitating the configuration of goods — as grounds for injunctions and damages. It does play a role in protecting information that is managed as a secret, but it has no provision determining whether the copyright in developed software belongs to the outsourcing party or to the vendor.
Incorrectエ
Incorrect. The Civil Code is a general law that provides for the formation of contracts in general (contracts for work, mandate, and so on), the rights and obligations of the parties, the payment of remuneration, and liability for non-conformity with the contract; it does serve as the foundation of an outsourcing transaction itself. However, the attribution of rights as intellectual property is provided for by the Copyright Act, a special law, so the Civil Code is not the law that answers this question.
ここがポイント
- How a copyright arises and to whom it belongs: a program is a “program work” under the Copyright Act, and the copyright arises automatically at the moment of creation (no formalities are required), belonging in principle to the person who actually created it (the vendor that took on the development). To move the rights to the outsourcing party, the assignment of the copyright must be stated explicitly in the contract.
- Distinguish the roles of the related laws: the Subcontract Act covers fairness in subcontracting transactions (payment dates, the ban on beating down prices, and so on), the Unfair Competition Prevention Act covers the prevention of acts of unfair competition such as protecting trade secrets, the Civil Code covers contracts in general, and it is the Copyright Act that provides for the attribution of intellectual property rights.
用語