Software copyright

The most common question from our clients is: How to software copyright protection?

In order to answer this question, you first need to understand the ownership of the object of law. So computer programs, software (SW), mobile applications, databases, software products, website source codes are objects of copyright.

This is indicated by the World Intellectual Property Organization (hereinafter referred to as WIPO) Copyright Treaty, which provides for the protection of computer programs as literary works. In addition, the TRIPS Agreement specifies that both the source code and the object code of a computer program are protected under this regime.

At the same time, copyright on a computer program extends to all countries participating in the Berne Convention for the Protection of Literary and Artistic Works, which is 181 countries.

Intellectual property software copyright

Copyright in the software arises at the moment of completion of work on it. The protectability of a work (SW) is expressed in an objective form accessible to human perception and is the result of creative activity. At the same time, not all program components are protected by copyright. Let’s take a closer look.

The most precise objects of authorship are: the source code of the software, which is expressed in its text form, and the objective code, which is the result of compiling its source code. If a decision is made on state registration of copyright for a computer program, then for the application it is also necessary to provide a manual for using the software.

As for the user interface, visual, audio effects, graphic design, name, all these components of the software are objects of industrial property and can be protected as an industrial design or trademark.

If an industrial result is achieved with the help of software and it is not obvious to the prior art, it is possible to obtain patent protection for the algorithm of such software, for example in the USA and some other countries. It is important that this software be part of a device or be a device itself. For example, a robot equipped with artificial intelligence functions.

It is impossible to obtain protection for ideas, methods, principles, business processes on which software development was based. These components are subject to strict confidentiality and trade secret protection.

For more detailed information on choosing a strategy for protecting rights to a computer program, we recommend contacting our software copyright lawyer.

Software copyright registration

As stated earlier, the author’s right arises when work on a software is completed. However, if the developer (author) plans to dispose of the rights to the software: sell, license the software, attract an investor, donate it, evaluate the cost and contribute to the authorized capital, carry out other legal actions, then state registration of copyright is necessary for these purposes.

You can submit an application for the software copyright registration to the specialized offices of the countries participating in the Berne Convention. Typically, the application is filed with the office of the country of origin of the subject of authorship or the nationality of the author. At the same time, many developers prefer to register copyright for their software with the US Library of Congress. Due to the objectivity of the procedure and the prestige of the department. As a result of the procedure, the author receives a copyright certificate for the work. Which is relevant for all countries participating in the Berne Convention.

Before registering copyright, in order to avoid lawsuits, you need to pay attention to the conditions under which the computer program was created. It can be created by a programmer independently, or in collaboration with other programmers, or while in an employment relationship with an employer, or to order under a software development agreement. Of course, no questions should arise if the software was created by the developer on his own initiative, but in all other cases it is better to agree on the distribution of rights before starting work on the software product. For this purpose, it is better to seek advice from our software copyrights lawyer.

Software copyrights laws

Copyright in a work (SW) is intellectual property and includes:

•  exclusive right, which is the property right of the author and
• personal non-property rights.

Let us consider separately the specified rights of the author in relation to software.

The property right to the software is the exclusive right to use (dispose of) the software at your own discretion in any manner that does not contradict the law on the basis of an agreement, namely:

• production of software copies;
• alienation, sale of software;
• software copyright license;
• import of software instances;
• software processing (right to modification);
• sale of copies (instances) of software through the capabilities of virtual reality and Web3 (NFT cards);
• access and licenses for copies of software via GitHub;
• providing access to software through communications (distribution on the Internet, etc.).

i.e., receive material benefits from the use and disposal of rights to the software.

The personal non-property rights of the author to the software include:

• acknowledgment of authorship of the software or its part;
• right to a name – the requirement to indicate the name of the author each time the software is used, or the pseudonym of the author or without indicating the name, i.e. anonymously;
• inviolability of the work – only the author has the right to give consent to changes to the software;
• the right to protection of the software from any kind of distortion or other infringement that could damage the honor, dignity or business reputation of the author.

These rights are the inalienable rights of the author and cannot be transferred by contract.

Thus, in order to obtain economic benefits, the author can dispose of exclusive rights to the software if he has a copyright certificate for the work.

What kind of software is copyrighted by the author?

The author of the software is the person whose creative work created the software. The emergence of copyright in the case of an independent initiative to create software is obvious. How to distribute copyright in a computer program among developers if it was created by a team of authors or as part of an official relationship or to order?

It often happens that developers who are employed by the company and/or engaged under civil law contracts are working on software creation. As a rule, the conditions for their acquisition of copyrights to software and other intellectual property objects created within the framework of labor or civil law relations are specified (regulated) in contracts with them.

At the same time, it is necessary to evaluate everyone’s personal contribution to the creation of software. Thus, people who have not made a personal creative contribution to the creation of software are not recognized as authors. These include people (employees) who monitored the execution of work during the creation of the software, or who contributed to the registration of rights to the software. Investors are also not included in this circle.

Most often, collective copyright rights are distributed between developers (programmers) and designers. The creators of the source code also do not include testers, managers, or ideological inspirers if they were not directly involved in writing the code, but only provided development organization and assistance. However, these are legally established rules and in practice this may look different.

To receive detailed advice on registering copyright for software, contact us by e-mail: info@sion-ip.com or by any available means indicated on our website.