What legal protections are offered in relation to the creators of computer software?
Technology (second edition)
The legal protections offered to creators of computer software are in relation to intellectual property. Under Law No. 28 of 2014 regarding Copyright (October 16, 2014), computer programs (inclusive of software) are granted the same type of protections as more conventional creations (e.g., books, art, music). These protections include imprisonment and/or fines in varying lengths and amounts, depending on the severity of the violation, for any violation of a copyright holder’s economic rights.
The Dutch copyright act 1912 offers protection to creators of computer software. Chapter 4 of the Dutch copyright act implements council directive (91/250/EEC) on the legal protection of computer programs. Copyrights arise through the creation of a work. No registration is required.
The protection given by the Dutch copyright act 1912 covers all forms of computer programs. Computer software is eligible for copyright protection if it has its own, original character and bears the personal stamp of the maker. This implies that the creation must be a result of creative human labour and thus of creative choices, so that it is a production of the human mind. All works that are eligible for copyright protection, including computer programs, are protected for 70 years commencing January 1st following the death of the author.
Software is protected by the same intellectual property rules granted to literary works by the Brazilian Copyright Act (Law No. 9,610/1998), and is subject to the Software Act (Law No. 9,609/1998). Software is protected regardless of registration with the Brazilian Patent and Trademark Office (INPI), although such registration, in certain cases, may be advisable to demonstrate and prove anteriority. Protection is granted for fifty (50) years, counted from January 1st of the publication’s following year or, in the absence of publication, of its creation.
In the Brazilian copyright system, the software author is the person who developed the software, while the software owner is the person or entity that can exploit the software from a commercial perspective.
According to the Software Law, unless agreed otherwise, the employer shall have full title over the software developed by its employees, assuming that the development of software was within employees´ duties at the company. The same applies for software made-for-hire, which IP shall belong to the hiring party.
Creators of computer software are entitled to copyright protection according to the amended Law of 18 April 2001 on Copyrights, Neighbouring Rights and Databases (the "Copyright Act"). Copyright protection of computer software does not extend to ideas, procedures, methods of operations or mathematical concepts. The copyright protection therefore extends to the expressive elements of computer software, i.e. the source code or object code. Copyright gives the owner of the software the exclusive right to reproduce, translate, adapt and distribute the computer software. No registration is required. All works that are eligible for copyright protection, including computer programs, are protected for 70 years commencing January 1st following the death of the author.
Legislation on intellectual property is in line with international practice, Romania having adhered to most of the international conventions on intellectual property, as well as to EU legislation in the field. According to EU legislation, computer programs are considered literary works. In Romania, computer programs are protected under Law no. 8/1996 on copyright and related rights (the “Copyright Law”). Article 72 of the Copyright Law provides that the protection of computer programs includes any expression of a program, application programs and operating systems expressed in any kind of language, whether in source code or object code, the preparatory design material and the manuals.
In Romania, copyright is protected provided that the work is original, takes a concrete expressive form and is able to be made known to the public. A copyright holder has the exclusive patrimonial right to decide whether, how and when its work will be used. In addition, he has the right to authorize or prohibit the following:
- the reproduction of the work;
- the distribution of the work;
- the import for trading on the domestic market, of copies of the work;
- the rental of the work;
- the communication to the public, directly or indirectly, of the work, by any means, including by making the work available to the public, in such a way that members of the public may access it from a place and at a time individually chosen by them;
- the broadcasting of the work;
- the cable retransmission of the work; and
- the making of derivative works.
Apart from the above general rights, copyright holders of computer software enjoy certain rights that are applicable especially to them. Thus, copyright holders of computer software have the exclusive right to do and authorise the following:
- the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole, including where the reproduction is required for the installation, storage, running, execution, display or transmission in the network;
- the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program;
- any form of distribution to the public, including the rental, of the original computer program or of copies thereof.
As per Government Ordinance no. 25/2006 on strengthening of the administrative capacity of Romanian Office for Copyright (“ROC”; in Romanian “Oficiul Român pentru Drepturile de Autor”; “GO 25/2006”) any producer of computer programs has the obligation to register with the national registry kept by ROC. However, said registration does not grant any copyright or ancillary rights.
Computer software is regulated by the Spanish Intellectual Property Act 1/1996 (Intellectual Property Act). The protection given by the Intellectual Property Act is provided not only for computer software, which is defined as any sequence of instructions or data intended for either direct or indirect use in a data processing system to perform a function or tack or to secure a specific result, regardless of its form of expression and recording, but also for the preparatory documentation, technical literature and manuals for the use of the program.
Article 97 of the Intellectual Property Act regulates the holding of computer software rights and provides the following rules:
- The individual or group of individuals that has created a computer program, or the legal person deemed the copyright holder, shall be deemed the author thereof.
- If the computer program is a collective work, unless otherwise agreed, the individual or legal person who published and makes the computer program available under his/her name shall have the status of author.
- If the computer program is a collaborative work made by two or more authors, they shall be joint owners of the program and it shall pertain to all of them in the proportions determined by them.
- Where the computer program is created by an employee in the execution of his/her duties or following the instructions given by his/her employer, the ownership of the relevant exploitation rights in the computer program so created, including both the source program and the object program, shall pertain exclusively to the employer, unless otherwise provided by contract.
Regarding the term of protection provided by the Intellectual Property Act, the duration of these IP rights depend on the specific owner of the rights:
- Where the author is an individual: copyright shall run for the life of the author and for 70 years after his/her actual or declared death.
- Where the author is a legal person: copyright shall run for 70 years counted from the 1st January of the year following that of the lawful communication of the program or that of its creation if it has not been made available to the public.
Computer software can be described as a computer programme or a set of computer programmes, and the Copyright Act, 1957 in India recognises computer programmes as “literary work” in line with the Berne Convention for the Protection of Literary and Artistic Works, 1886. The creator is granted exclusive rights including inter alia the right to reproduce, sell or rent the software to the public, for a period of sixty (60) years, under the Copyright Act, 1957.
Further, though a computer software is not patentable on a stand-alone basis, protection under the Patents Act, 1970 may be granted in case the software can be shown to be an integral part of a novel hardware invention. The term of a patent is for a period of twenty (20) years in India.
Also, if the source code of a software is maintained as a trade secret under contractual arrangements, the courts in India recognise such agreements and enforce the same.
The on-screen look and feel of a software can be protected under the Trademarks Act, 1999. The protection is for an initial period of ten (10) years and may be extended by an additional ten (10) years.
Under the Law on Intellectual and Artistic Works numbered 5846, the following rights are granted to the creators of computer software (Computer software cannot be patented in Turkey):
- economic rights:
- right of adaptation, i.e. preparing derivative works, reproduction, distribution, performance
- communication to the public i.e. public performance and public display
- the moral rights
- disclose the Work to the public,
- designate the name of the Work, prohibition of modification and the rights against the possessors and proprietors.
Computer software and their creators are protected through several acts, the most relevant being the Patent Act (Sw. Patentlagen), the Act on the Right to Employee´s Inventions (Sw. Lag om rätten till arbetstagaresuppfinningar), the Circuit Pattern Protection Act (Sw. Lag om skydd för kretsmönster för halvledarprodukter), the Industrial Secrets Protection Act (Sw. Lag om skydd för företagshemligheter), and the Copyright Act (Sw. Lag om upphovsrätt till litterära och konstnärliga verk).
Program codes per se are not eligible for patent registration in Sweden. A technical invention that is executed by software can however be patentable, thus resulting in an indirect protection of the software.
Software will obtain copyright protection if it is original in the sense that it is an intellectual creation of the creator.
Computer software is protected under the Federal Act on Copyright and Related Rights of 9 October 1992, as amended (COPA). Copyrights generally vest in the author (i.e., the natural person that created a copyrightable work). In contrast, commercial exploitation rights in software developed by an employee in the course of employment vest in the employer. The owner of such rights is entitled to solely decide as regards the adaptation, reproduction, distribution, communication, broadcasting and other ways to commercialize or dispose of the computer software. The Federal Act against Unfair Competition of 19 December 1986, as amended (UCA), protects marketable work results (such as computer software) against technical reproduction performed without commensurate effort by the reproducing party.
The Copyright Law and the Regulations on Computer Software Protection (2013) provide main protection for software creators. The copyright rights of software creators include the rights of publication, indicating authorship, alteration, reproduction, distribution, rental, communication through information network and translation. Software creators may transfer and/or license the software and receive remuneration. Under the patent law, software creators may patent the algorisms or other protectable subject matters of the software that he/she invents.
Software programs are regulated under the Copyrights Act (Ley Federal del Derecho de Autor) and are protected as literary works. Creators of software programs hold moral and economic rights. Moral rights are inalienable, do not lapse and may be inherited. Economic rights vest upon the holder the exclusive right to reproduce, translate, adapt, distribute, and decompile the software. Economic rights may be transmitted and lapse after 100 years from the author’s death.
Pursuant to the Industrial Property Act, software programs are not subject to patentability.
Computer software or computer programmes enjoy copyright protection under the definition of “literary works” pursuant to the Copyright Act 1987 (“CA”). The computer programme must meet certain requirements for copyright to subsist in the programme, i.e. that sufficient effort has been expended to make the programme original in character and that the programme has been reduced to material form, amongst other requirements.
Pursuant to Section 36A of the CA, creators of computer software may protect their copyright in their work via the application of technological protection measures to a copy or copies of their work. Except for very limited circumstances, the CA prohibits any person from circumventing, causing, or authorising any other person to circumvent such technological protection measures:
(a) that are used by the creators in connection with the exercise of their rights under the CA; and
(b) that restrict acts in respect of his/her works which are not authorized by the owner concerned or permitted by law.
The High Court in Creative Purpose Sdn Bhd & Anor v Integrated Trans Corp Sdn Bhd & Ors  2 MLJ 429 also decided that the modification of computer software programmes to circumvent the security features of the software amounted to copyright infringement even if it was done without direct copying of the original programme.
Provided that a software invention involves hardware and/or a technical effect or solves a technical problem in a novel and non-obvious manner, a software may also be protected by patent rights although the patentability of software in Malaysia remains unclear. To date, the Intellectual Property Corporation of Malaysia (“MYIPO”) has not prescribed any guidelines for the examination of softwarebased inventions.
Software programs are legally protected by copyright under the Intellectual Property Code (IPC), provided they are original. According to case law, ‘original’ means that the way a program is written reflects the author’s personality or personal efforts. Copyright grants the software publisher the exclusive right to authorize the use, copying and initial distribution of its program for a period of 70 years from the year of publication.
This legal protection applies to source code and object code regardless of the kind, form of expression, merit or purpose of the program. Copyright may also apply to preparatory design materials (e.g. specifications), graphical user interfaces or embedded multimedia elements, or even to the title of the program. However, the software medium (e.g. CD Rom), the ideas and concepts embodied into the software and, more generally, its functionality, are not protected by copyright.
Patent protection cannot apply to computer software programs “per se,” but only insofar as they are used within patentable inventions (i.e. may cause a "technical effect"). Filing a piece of software with a software registrar is still useful, because this will provide evidence of the date of creation. Other than that, confidentiality remains the best protection for the program’s source code.
The creators of computer software (“author”/“Urheber”) are legally protected by copyright, especially by the special provisions for computer programmes regulated in sections 69a et seqq. of the Copyright Act (UrhG) based on the EU computer program directive (2009/24/EG). Author is defined as the maker of the piece of work according to section 7 UrhG, therefore in terms of software the software developer as natural person. This copyright ownership as author is not transferable, but it is possible to grant licenses to third parties in return for an appropriate remuneration in accordance with sections 31 et seqq. UrhG. If a software is created by an employee, then the employer has the exclusive right to use and exploit the software in accordance with section 69b UrhG provided that nothing contradictory is agreed. Moreover the creator could be protected by patent law (PatG) in specific circumstances where the software fulfils the requirements of a invention in a field of technology (“technische Erfindung”) and the Employee Inventions Act (ArbnErfG) . Furthermore the creator is protected by the criminal law provisions in sections 106 et seqq. UrhG. In accordance with those sections unauthorised use, unauthorised affixing of copyrights as well as unauthorized tampering with technical protective measures is punishable.
The computer software may be protected in the following ways:
The computer code, which is considered to be "literary works" under the Copyright Act, may be protected by copyright. The computer code must meet copyright requirements such as originality. The duration of copyright protection for computer code is 70 years after the creator's death.
The computer software may be protected as a trade secret. A trade secret is confidential information that is private to only individuals who possess such confidential information. Generally, once a trade secret is in the public domain, it loses protection under trade secret laws. A computer software creator may commercialise his software and yet keeps his underlying software architecture, algorithm and code as a trade secret. However, trade secret protection does not protect against independent creation or reverse engineering. A trade secret does not require any application and has no limitation on its duration.
In Australia computer-related IP can potentially be protected in three key ways, depending on the circumstances:
(a) by obtaining a standard or an innovation patent under the Patents Act 1990 (Cth), which will protect the way the software makes a computer work;
(b) through copyright under the Copyright Act 1968 (Cth), which will protect the source code of the computer software as a literary work; or
(c) through circuit layout rights under the Circuit Layouts Act 1989 (Cth), which will protect the design and layout of an electronic circuit.
Where obtainable, patents generally offer the strongest form of protection for computer software. However, protection is still difficult to obtain, and will not apply to software developed to make a computer work in the same way any other software does, even where the source code of the software itself is different.
Software is protected by U.S. copyright laws and international treaties. Registration of copyright is available (and required for enforcement proceedings), but copyright protection attaches from the moment the work is fixed. The source code to software, if properly maintained in confidence, may be treated as a trade secret. Software may also be eligible for patent protection; however, the patent-eligibility of software has been narrowed significantly by the courts in recent years.
The U.S. Supreme Court recognized software implemented business processes as patentable in its 1998 State Street Bank decision. After a decade of overly broad software patents issued by the patent office, the Supreme Court once again ruled on the patentability of software-implemented business processes in Bilski v. Kappos and substantially narrowed their eligibility for patent protection. Subsequently, in Alice Corp v. CLS Bank, the Supreme Court emphasized that embodying otherwise common aspects of business operations in software would not be eligible for patent protection.
Software is also protected by contract under the terms of the licensor's license agreement. In 1996, a federal appellate court in Pro CD v. Zeidenberg held that shrinkwrap license agreements were enforceable and not pre-empted by the Copyright Act.
Under Japanese law, computer software may be legally protected by patents and copyrights.
Under the Patent Act, a computer program, including any information that is to be processed by a computer and equivalent to a computer program, can be protected where the software program fulfils the requirements of an invention, which is defined as a highly advanced creation of technical ideas utilizing the laws of nature.
While patents protect the ideas of computer software, copyrights protect the expression of those ideas. Copyrights provide the copyright owners of certain works (including computer programming works) with certain exclusive rights, including the right to reproduce, distribute, transfer and create derivative works of the software. Registration is not required to secure copyrights or exercise copyrights against third parties, but registration is required to assert the transfer of copyrights against third parties.
Computer software and its creators are protected under the Act of 4 February 1994 on Copyright and Related Rights. This regulation contains special provisions on computer software, which constitute a separate regime of copyright protection. According to Art. 74(2) of this act, protection accorded to a computer program covers all forms of its expression. Therefore, not only source code, but also object code and documentation are protected.
Creators of computer software have both economic and moral rights to the copyrighted work. As far as the author’s economic rights are concerned, they cover specific forms of exploitations, such as:
- reproducing a computer program permanently or temporarily by any means and in any form, in part or in whole; insofar as loading, displaying, running, transmitting, or storing the computer program necessitate such reproduction, such acts require the rightholder’s permission;
- translating, adapting, arranging, or altering the computer program in any other way, without prejudice to the rights of the person who modifies the program;
- distributing the original computer program or copies thereof to the public, including letting for use or rental.
The author’s moral rights, however, are limited only to the right to claim authorship and to be identified on the work by name or pseudonym or to make the work available anonymously (whereas authors of other copyrighted works also have the right to integrity of the form and content of their work and to the fair use of the work, as well as the right to decide whether and how the work is made available to the public for the first time and to supervise how the work is used).