What legal protections are offered in relation to the creators of computer software?
Computer software may be protected in a number of ways, including the use of patents (utility and design), copyrights, trade secrets, and licenses. Each has its advantages and limitations, so many times, protection of computer software can often be layered to provide the broadest possible protection to creators of the software. It should be noted that the various protections are highly nuanced, so what follows below is a general description of each.
Moreover, there are statutory protections for certain software and computer systems, including the Digital Millenium Copyright Act (“DMCA”) that prevents the circumvention of technological protection to unlawfully access software and computer systems. DMCA’s anti-circumvention provisions can be applicable even if material is not actually protected by copyright, such as if the code were public domain or open source. There is also an anti-hacking statute, the Computer Fraud and Abuse Act (“CFAA”). The CFAA makes it a violation punishable by both criminal and civil law to, among other things, intentionally access a computer without authorization and obtain information therefrom.
A. Patents. Patents are available to “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof…” (35.U.S.C. §101). Beginning in 1981 with Diamond v. Diehr, 450 U.S 175 (1981), computer software has generally been afforded protection as proper subject matter for patenting under this section, provided the software meets the other requirements of patentability including novelty and non-obviousness. Since then, the scope of protection has fluctuated somewhat, with the recent 2014 U.S. Supreme Court in Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014) limiting protection somewhat. Under current law, abstract ideas, such as an algorithm, method of computation, or other general principle embodied in computer software are not patent eligible unless there is a further “inventive step” which may involve a machine or transformation. So while computer software remains patent eligible generally, the scope of the software that is patent eligible been significantly narrowed and in fact, remains in flux as further case law is being developed. Design patents may be available for certain graphical user interface configurations.
B. Copyright. While patents, when available, protect the idea or functionality of computer software, copyright protects the expression of those ideas. Under U.S. law, computer programs are considered “literary works” under 17 U.S.C. §101. Copyright affords the copyright owner certain exclusive rights, including but not limited to, the right to copy, distribute, and to create derivative works of the software. Registration of the software is not required to secure copyright, but is generally required in order to sue for infringement.
C. Trade Secrets. One option for software developers is to maintain the software code as a trade secret. To be eligible to be a trade secret, the concept must not be generally known in the industry and provide a competitive advantage to the trade secret owner. Moreover, the owner must take affirmative steps to maintain its secrecy. Protection through trade secrets does not prevent reverse engineering of the software, therefore trade secret may be used as an alternative to patent protection when the software is not easily accessible by a third party.
D. Licenses. Licenses for proprietary and open source software are also available for contractual protection. Licenses are generally bi-lateral between the software owner and the user and may include minor or major restrictions on the licensee. For example, the license may prohibit the licensee from exercising the exclusive rights of the software copyright owner while also restrict the licensee from reverse engineering the software. At other times, the license may grant to the licensee one or more of the exclusive rights afforded to the copyright owner such as the right to distribute or create derivative works. Even ‘free” open source software is often protected by license using the various so-called “copyleft” licenses.
The Copyright Act, Chapter 415 of the Laws of Malta (the ‘CA’) provides that computer programs are protected as literary works. It is the expression of the idea which is protected by copyright and not the idea itself. Therefore, it is the source code of a computer software which is protected by copyright.
The main rule under Norwegian law prescribes that the person who creates intellectual property has copyright to the work, cf. Act no. 2 of 12 May 1961 relating to Copyright in Literary, Scientific and Artistic Works (the Copyright Act) Section 1. The aforementioned Section first paragraph no. 12 specifically defines computer software as falling under the act’s definition of intellectual property.
Where an employee creates a computer software during the performance of tasks for, or in accordance with the instructions of, an employer, the copyright to such computer software shall befall the employer unless otherwise agreed, cf. the Act Section 39g.
As such, the employer is granted the exclusive right to dispose of the computer software and will be entitled to produce copies of the computer software or otherwise make available, modify or transfer the rights to said software, cf. the Act Sections 39 and 39h.
Computer software are also excluded from the right to produce copies of published copyrightable work for private and non-commercial use or to use such work for commercial educational purposes, cf. Sections 12 first and second paragraph letter b and 21 first and third paragraph.
Computer software are protected as “works” under the Intellectual Property Law w. no 5846. While computer software cannot be patented in Turkey, it is possible to protect computer software as a copyright.
The creators of a computer software (artist) owns all the financial and moral rights to the software and has the right to protect these rights and may request from the court to decide for the following:
- Cease infringement,
- Prevent infringement,
- Damages (Up to 3 times the value of the software if there would be a license agreement)
Further, infringement of moral and financial rights is subject to imprisonment between 1 to 5 years or TRY 182.500 (€ 45.500 approx.) of judicial fine.
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.
Computer software programs are protected under the Mexican Federal Copyright Law (Ley Federal del Derecho de Autor) as a literary copyright work. Meaning that moral and financial rights arise from the protection of software as copyright work.
It is important to mention that the Mexican Intellectual Property Law (Ley de la Propiedad Industrial) provides that computer software is not considered as an invention, meaning that software per-se cannot be patentable. However, there has been cases when software related inventions have been subject to a patent but not the software itself.
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)).
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.
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.
Under Italian law, computer software is considered as an intellectual work falling within the scope of Law 22.4.1941, n. 633 concerning the protection of copyright and neighbouring rights (hereinafter the “Copyright Law”). Section 2, n. 8) of the Copyright Law expressly states that any form of computer software which is original and is the result of the intellectual creation of his/her author will be granted protection by copyright. Copyright protection is granted to the author of a software automatically with its creation and does not require any specific procedure in order to be recognized.
The author of the software is the holder of two distinct categories of exclusive rights:
(i) the “moral” rights to be recognised as the author of the software. Such rights are of a personal nature and cannot be waived or sold and/or in any way transferred by the author; and
(ii) the rights to utilise and economically exploit the software; such rights may be totally or partially transferred by the author.
If the software is developed by an employee, in the context of the performance of its tasks or on the basis of instructions provided by the employer, the right to economically exploit the software belongs to the employer.
In relation to the exclusive rights to the use and economic exploitation mentioned above, the Copyright Law includes specific provisions on the extent of the awarded protection. Such provisions were introduced in the Copyright Law in 1992 upon Italy’s implementation of EU Directive 91/250.
Copyright on software includes the exclusive right of the author (or of the transferee of the rights of economic exploitation) to carry out or authorise:
(a) the reproduction, permanent or temporary, total or partial, of the software by any means or in any form. To the extent that the operations such as loading, screening, running, transmission or memorisation of the software require a reproduction, also such operations are subject to the authorisation of the copyright owner;
(b) the translation, the adaptation, the transformation and every other amendment of the software as well as the reproduction of the work that results from this (without prejudice to the rights of the person amending the software); and
(c) any form of distribution to the public, including the lease of the original software or of copies of the software.
However, the Copyright Law provides also for some limitations to the exclusive rights. In particular, under certain conditions, the legitimate licensee cannot be contractually prevented by the owner of the intellectual property rights from carrying out certain activities, such as making a back-up copy, correcting errors or making amendments aimed at ensuring the interoperability of the software with other computer programs.
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.
The software creators are protected by the same intellectual property rules granted to literary work creators stipulated by the Copyright Act (Law No. 9,610/1998), and is also 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 1 of the year following publication or, in the absence of a 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 which 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.
The legal protections offered creators of computer software are those 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.
Computer software is recognised as a ‘literary work’ under the Copyright Act, 1957. In this manner, any ‘computer programme’ is protected as the copyright of the creator of the software. Under the Patents Act, 1970, as amended by the Patents (Amendment) Act, 2002, a computer programme per se is not patentable. However, any patent application that reveals novelty, inventive step, and industrial applicability in the process associated with development of software applications or the functionality of software applications may be patentable in India. Under the Trade Marks Act, 1999, the name of a software company, its products and taglines can be protected, thus preventing competitors from using similar names. Trademarks protect software brands, but not the software or underlying code itself. While there is no statutory protection for trade secrets in India, the courts have recognised that key business secrets and information can be protected through contracts. Typically, contractual provisions that seek to protect confidentiality and trade secrets, which may include computer software and design, are enforceable during and after the term of the contract.
The Copyright Law of 2007 (the "Copyright Law") governs the protection of computer software and was enacted in accordance with the provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. According to the Copyright Law, computer software is considered as a "literary work", and the copyright protection is granted to computer software for "any way it is expressed in" (i.e. not only for source code). A developer of computer software is not required to register the software to gain statutory protection. Such protection includes, among others, the sole right to copy, advertise, perform publicly, broadcast, make a derivative work, rent, or make the software available to the public. The Copyright Law permits to copy or make a derivative work for holders of a licensed copy of the software, and for specific purposes (e.g. software backup, compilation to other software, data security inspection, etc.). The copyright protection is granted for the lifetime term of the developer plus an additional 70 years after the developer’s death. It is customary to claim that if software is developed by a company with multiple developers contributing to it, the term is practically unlimited. Breach of such law may grant the developer a right to financial compensation without the need to prove damages (statutory damages), and may impose criminal liability. Moral rights which regularly award certain credit rights to copyright developers, are not awarded to software developers since the enactment of the 2007 law. In certain circumstances, computer software (mainly algorithms) may also be registered as a patent.
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.
Software programs are legally protected by copyright, provided they are original. According to case law, ‘original’ means that the way a program is written reflects the personality or the personal efforts of its author. 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.
Patent protection cannot apply to computer software programs “as such,” but in as far as they are used within patentable inventions (i.e. may cause a "technical effect").
Filing a piece of software with a registrar or notary public remains useful, however, in a view to obtain evidence of the date of its creation. Such a filing will comprise the source code, but its content will not be made public. From a practical viewpoint, confidentiality indeed best protects the source code of a program.
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.
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 Organic Knowledge Social Economy Code, published in Official Register 889 dated December 09, 2016, regulates the property and management of intangible goods, including software. Furthermore, software is considered a work eligible for protection by the Law and it is categorized as a literary work.
Said protection is granted regardless of whether it has been incorporated in a computer and whatever form it has been expressed, be it in source code, that is in readable form by humans, or as object code, that is readable form by a machine or computer; be it in operating systems or application systems, including flow diagrams, plans, user manuals. In general, those elements that makeup the structure, sequence and organization of the program.
It is excluded from this protection, standard forms of software development. In other words, the law only protects software as such, and not those responsible for developing it. The scope of protection focuses on the product itself.
In Ecuador, the rights of the artists has two aspects:
a) Moral rights: through which the artists or performers have the right to be recognized as intellectual authors of the work. As a result, they can object to any act that distorts, mutilates or modifies its interpretation or in any way damages its honor or reputation.
b) Economic rights: Are those marketing and profit rights from the exploitation of the work. Both moral and economic rights of software development can be held by the same person; however, the author can only assign economic rights to a third party. The party to whom the economic rights are assigned can be a natural or legal person.
When software development is performed under a labor relationship or under commission, the ownership of said work is held at all times by the author, unless otherwise agreed to. As previously mentioned, the author can assign its rights to a third party, however, the author will keep its power to exploit the works in a manner other than the one stipulated in the contract, as long as, it does so in good faith and does not harm unreasonable harm the normal exploitation of the work carried out by the employer or contracting party.
Additionally, the Organic Knowledge Social Economy Code determines that in the event that public servants in the performance of their duties develop the software, the employer, in other words the State, will be the copyright owner.