What legal protections are offered in relation to the creators of computer software?
Technology (3rd edition)
In accordance with the Civil Code of Armenia and the Law of Armenia on copyright and related rights the software is the object of the copyright and protection as such.
The Law of Armenia on copyright and related rights defines computer software as programs expressed in any form, including preparatory design materials for their creation.
Computer software is the subject to protection if it is original and is a result of the author’s own creative intellectual work.
Under the general rule, the author of a computer software shall have the exclusive right to do or authorize the following acts:
- to make permanent or temporary reproductions of the computer software by any means and in any form in part or in whole. In so far as loading, displaying, running, transmission or storage of the computer software necessitate its reproduction the author’s permission shall be necessary for such acts;
- to make translations, adaptations, arrangements and any other alterations of the computer software and the reproduction of the results thereof without prejudice to the rights of the person who alters the software with his consent;
- to distribute the original or copies thereof in any form including its rental and lending.
The person lawfully possessing a copy of a computer software (hereinafter, the user), without the consent of the author and without additional remuneration, has a right to reproduce or to alter it in a single copy, if such copy or alteration is necessary:
- for the use of the computer software in conjunction with the technical means of the user, exclusively for the purpose and to the extent for which the software has been intended, including for correction of the obvious errors present therein;
- for the replacement of the lawfully acquired computer software or a copy of it, in case of the latter having been lost, destroyed or rendered useless.
The user of the computer software has a right, without the consent of the author and without additional remuneration, to observe, study or test the functioning of the software in order to determine the ideas and principles which underlie any element of the software if he does so while performing any of the acts of loading, displaying, running, transmitting or storing in a memory the software which he is entitled to do.
The user of the computer software has a right, without the consent of the author and without additional remuneration, to reproduce and convert the object code of the software to the source code (to decompile the computer software) or commission other persons to perform those acts if they are indispensable to obtain the information necessary to achieve interoperability of an independently created computer software with other software, if the following conditions are met:
- the information necessary to achieve interoperability has not previously been readily available from the other sources to the lawful user or the persons acting on his instructions;
- these acts are confined to the parts of the software under the decompilation, which are necessary to achieve interoperability. The information obtained as a result of the mentioned decompilation may be used only for the purposes to achieve interoperability of an independently created computer software and shall not be transferred to other persons, with the exception of the cases, when it is necessary for the interoperability of an independently created computer software, or used for the development, production or marketing of a computer software similar in its expression to the software under the decompilation or for performing any other act infringing the copyright.
Computer software is protected under Dominican Law 65-00. Article 2.11 of the referred law, states that software rights are protected under the same conditions that apply to literary works, for a period of 70 years after its creation. The registration of computer software copyright provides its author with moral and patrimonial rights.
Moreover, Decree No. 258-16 creates the Program for the Development of the Software Industry and TIC Services aims to promote the evolution of the small software developers by organizing trainings activities on the creation of software that fully comply with international standards.
It is important to note that since July 26, 2010 the Commission of Higher Education, Science and Technology of the Dominican Senate has been deliberating on a bill approved by the Chamber of Deputies, in order to regulate the promotion of the software industry in the Dominican Republic.
Computer software is considered as rights affiliated to copyrights; and accordingly, are protected under the Intellectual Property Law No. 82 of 2002 (“IP Law”).
The IP law provides for a number of safeguards for creators of software that aim at protecting their rights including:
- The ability of the software creator to register its software before the relevant competent authority (i.e ITIDA). Said registration gives the creator protection in the Arab Republic of Egypt against the infringement of its rights related to the registered software;
- The creator and its heirs have an exclusive right to license or restrict any third party from using its software as well as to follow the original version of the software, if disposed and to receive a percentage not exceeding 10% of the profits resulting from said disposal; and
- The financial rights of the creator of the software are protected for the duration of his lifetime and for a period of fifty (50) years thereafter.
Computer software is regulated with several acts, that might affect how the author of software is protected. Computer software is under the protection of the Estonian copyright act (Act). The provisions of the Act regarding computer software, are based on Council Directive 91/250/EEC on the legal protection of computer programs. The Act states that works in which copyright subsists are also computer programs that shall be protected as literary works. Protection applies to the expression in any form of a computer program. According to the Act, the authors of the works (computer software) have moral and economic rights regarding the works, however, the Act also sets out situations, when the computer software can be used more freely. The economic rights of the author can be limited in cases specified by the Act. The legal remedies in case someone violates author’s rights, are provided in the Estonian Law of Obligations Act (LOA). The main legal remedies to use are claim of damages and claim to end the violation of the rights (and also claim to refrain from further violations).
The ownership of the copyrights will depend on whether the works were done as a staff member of an employer – in such case the economic rights of the author to use the work for the purpose and to the extent prescribed by the duties shall be transferred to the employer unless otherwise prescribed by contract.
In addition, Estonian penal code includes provisions regarding offences related to computer software.
Software programs are legally protected by copyright under the Intellectual Property Code (CPI), 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, however, because this will provide evidence of the date of its creation and sustain the demonstration of its originality on that date.
Alongside these provisions, confidentiality remains the best protection for the program’s source code, all the more since the transposition in 2018 of the EU directive of 8 June 2016 on the protection of undisclosed know-how and commercial information (trade secrets). Trade secrets are now protected under the law whenever their legitimate holder can show it has taken reasonable protective measures to preserve their secrecy.
The PRC Copyright Law and associated regulations (e.g., the Regulations on Computer Software Protection) grant copyrights over computer software to its author/creator (unless otherwise agreed), along with the rights of publication, authorship, modification, distribution and communication. The PRC Anti-Unfair Competition Law also includes protective provisions for trade secrets, which cover know-how and source code. For example, businesses are prohibited from disclosing, using or allowing others to use trade secrets in violation of confidentiality and from obtaining others’ trade secrets by theft, bribery, intimidation, electronic intrusion or other improper means.
Software can be protected by copyright, patent, or trade secret, and in appropriate circumstances by claims for unjust enrichment (although this exceeds the scope of the current discussion).
Software is considered a “literary work” under the Copyright Act 2007 (the 'Copyright Act'), although there is no moral right in software. According to Section 4(a) of the Copyright Act, copyright subsists in any original literary, dramatic, musical or artistic work if it is fixed in any form. Copyright subsists automatically upon creation and there is no registration of copyright in Israel.
The author of a literary work, including software, is the first owner of copyright in the work and the employer is the first owner of copyright in a work created by an employee during and as a result of his or her employment.
Under Section 38 of the Copyright Act copyright protection endures for the life of the author plus 70 years after his or her death, subject to certain exceptions. In the case of a joint work, copyright subsists throughout the life of its longest surviving joint author plus 70 years after his or her death.
Patent protection is available when the software is part of a patentable invention; most technological inventions include some form of software. As a general rule, standalone software is not patentable, but according to court and Patent Commissioner Jurisprudence, the fact that an invention contains software will not prevent its registration as a patent. It is questionable whether software combined with a business system is patentable.
The Patents Law 1967 (the 'Patent Law') governs patents in Israel. Patents only afford protection once they are registered. The Commissioner of Patents, Trademarks, and Designs is responsible for the Patent Registry. Patents have a term of 20 years from application, subject to certain exceptions.
A patent holder is entitled to prevent any third party from exploiting the invention for which the patent has been granted without his or her permission, either in the manner defined in the claims or in a similar manner.
Patent owners have the exclusive right to do the following for the duration of the registration:
(i) in respect of an invention that is a product – any act that is one of the following: production, use, offer for sale, sale, or import for purposes of one of the aforesaid acts; and
(ii) in respect of an invention that is a process – use of the process.
As with copyrights, the basic rule is that the inventor is the owner of the rights. In the absence of an agreement to the contrary, the employer is the owner of rights in inventions made by employees during and in the course of his or her service (a “Service Invention”), although in some circumstances the employee may be entitled to royalties from the commercialization of any such Service Invention.
Patents can be licensed, but in order for a license to be binding upon third parties, it must be recorded with the Israeli Patent Office.
Software – mainly source code - that falls within the definition of “trade secret” under the Commercial Torts Law 1999, is protected as a trade secret.
Trade secrets are defined as “any business information, which is not publicly known and which cannot readily and legally be discovered by the public, the secrecy of which grants its owner an advantage over his or her competitors, provided that its owner takes reasonable steps to protect its confidentiality”. In theory, there is no limit on the duration of the right. Information can remain protected as a trade secret as long as it remains confidential and does not enter the public domain.
Usually, the owner of the information owns the trade secret; in an employment relationship the trade secret will belong to the employer. Patent applications that have not yet been published also constitute trade secrets.
Trade secrets can be licensed and there is no need to record the grant.
 The moral right consists of the author’s rights of attribution and non-distortion.
Software intellectual property may be protected:
- through copyright, pursuant to Law no. 633/1941, it is possible to extend to the source code and the object code a protection that lasts 70 years after the death of the author; this is a protection that reserves to its owner not only the reproduction but also the use of the program itself, allowing him to exclude any possibility of use by other subjects, unless expressly authorized but that, however, does not protect the functionality of the software itself;
- through patent it is possible, on the other hand, to protect one or more algorithms of the software that are considered innovative from the technical point of view through a form of protection more intensive than that guaranteed by copyright: the patent allows, in fact, to protect the invention in whatever form it is reproduced.
In addition to these forms of protection, if the software has already been published, the latter can be registered in the special public register for computer programs. This filing has a declaratory probative function of the existence of the work and its authorship at a certain date, transferring to third parties the burden of proving the contrary.
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 enjoy copyright protection under the definition of “literary works” pursuant to the Copyright Act 1987 (“CA”).
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) which are used by the creators in connection with the exercise of their rights under the CA; and
(b) which 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 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.
If a software invention involves hardware and/or a technical effect or solves a technical problem in a novel and non-obvious manner, it 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 software-based inventions.
Computer programs are considered literary works under the Copyright Act (Chapter 415 of the Laws of Malta) and are therefore automatically eligible for copyright in terms of the same act. There is no depository to file copyright in Malta.
Computer software can be legally protected in two key ways:
Copyright: Copyright protects original works and arises automatically. The underlying source code or machine-readable translation of the object code of original software may be protected by copyright, under the Copyright Act 1994. The duration of protection depends on the category of the work the copyright subsists in.
Patents: Following successful application, patents allow the creator of a new invention exclusive use of that invention for up to 20 years and the ability to bring an action against anyone who infringes on that right. Software "as such" is excluded from protection under the Patents Act 2013 if the actual contribution made by the alleged invention lies solely in it being a computer program. However, if the "actual contribution" of the software is part of a redevelopment or improvement of the qualities or features of a machine, the software may be patentable. For example, software which enables a washing machine to use less water or electricity while achieving the same or better performance could be patentable.
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 an 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.
Computer program/software is recognized as copyrightable object under Law No. 28 of 2014 on Copyright (“Copyright Law”). The creator of computer program/software shall hold moral and economic rights. Copyright protection for computer program is valid for 50 years since it is first published.
Pursuant to the Copyright Ordinance 1962 (the “Copyright Ordinance”), any person who knowingly infringes or abets the infringement of:
a) the copyright in a work, or
b) the rental rights in cinematographic works and computer programmes
c) the rights of performers or producers of sound recording: or
d) any other right conferred by this Copyright Ordinance
shall be punishable with imprisonment which may extend to three years, or with fine which may extend to one hundred thousand rupees", or with both.
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, as republished (the “Copyright Law”). Article 73 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.
Legal protection is offered to computer software that meets certain requirements under the Patent Act and Copyright Act.
Under the Patent Act, if a computer program which is stored on a medium for the purpose of solving a certain task by being combined with hardware qualifies as an invention, it can be protected as a patent. However, a computer program that is not stored on a medium is not afforded the legal protections of a patent.
Under the Copyright Act, an idea itself is not legally protected. However, because the Copyright Act protects the expression of ideas, a computer program can be protected as a copyright if it qualifies as a creative external representation.
Computer software is regulated by the Spanish Intellectual Property Act 1/1996 (hereinafter "the 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 task 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 intellectual property 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 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.
The Copyright Act would be the main protection that a creator of computer software can rely on for protection of their proprietary rights. It is possible to apply for patent registration in Taiwan for certain computing technology. Trade secret may also be an option for protection.
Computer programs (i.e. computer software) and their preparation materials (provided that such materials form a program later on) are protected under Law No. 5846 on Intellectual Property (IPL). Accordingly, the owner of the work may determine whether the program will be shared with public, whether the owner’s name will be displayed while sharing the program with public, and prohibit making a change in the program.
Creators of computer software are entitled to copyright protection through the Copyright, Designs and Patents Act 1988 ("CDPA"). This gives the owner of the software the exclusive right to use and distribute it for a period of 70 years from the end of the calendar year in which the author of the software died (section 12(2)).
However, if the work is computer-generated, where there is no human author of the work copyright expires 50 years from the end of the calendar year in which the work was made (section 12(7)).
Elements of a computer program, such as screen displays and graphics may give the creator of computer software design rights under the Community Design Regulation (6/2002/EC) and/or the Registered Designs Act 1949, although a computer program itself does not attract a design right.
Patents are not available for computer software "as such" under the Patents Act 1977, although the Court of Appeal in the Aerotel Ltd v Telco Holdings Ltd and Macrossan  EWCA Civ 1371 set out guidance to establish when computer software may be patentable, which is currently being followed by the Intellectual Property Office when deciding whether or not to grant a patent.
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.
In early 2019, the US Patent and Trademark Office proposed new rules for patent examiners that would narrow the scope of patentability exclusions articulated in Alice. Recent Federal Circuit court rulings have also narrowed patentability exclusions, making room for greater patentability of software.
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.
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. Whilst it is accepted that computer-implemented inventions may form the basis of patentable subject matter in Australia, providing that the contribution of the invention is not abstract, protection can still be difficult to obtain. It is not enough to simply put a computer based method into a patent claim; the invention must lie in the computerisation and technical result. Accordingly, any drafting of patent specifications for computer software should suitably outline, discuss and claim the technical features that solve the technical problem.