The protection of software under copyright law

4 August 2021
If your startup is into software, here is the guide for you: find out how to protect the intellectual property of your work.

Resource created by TORO Legal Hub

Nowadays, software and applications play a central role in our society, facilitating and improving not only our daily life but also complex industrial processes, representing a fundamental and strategic asset for startups, innovative SMEs but also for large companies with multi-million dollar turnovers. 

Software can be protected both from the point of view of copyright - which we will examine in more detail below - and from the point of view of patents. 

Copyright protects the creator of the software, defined by law as a computer program intended as the set of programs that allows the computer and therefore the entire operating system to perform particular activities and required operations. In other words, the software consists of a sequence of instructions expressed in a certain language which, as a result of being loaded into a computer, command the orderly performance of certain activities. These instructions can be expressed in a language comprehensible to man (so-called source code) or only to the machine that receives, interprets and executes them (so-called object code). 

The entire discipline of copyright (Law April 22, 1941, No. 633, Protection of copyright and other rights related to its exercise) is applicable to computer programs in any form expressed if original, as a result of intellectual creation of the author. The protection also extends to the source code, i.e. the code explaining the steps that make up the software and therefore to its overall architecture: it can be protected like any other literary work. Moreover, all the preparatory material for the design of the program itself, that is to say also the object code, is also protected. According to the provisions of art. 2, n. 8, l.d.a., the object of protection is not only the program (and, therefore, its source code and object code), but also "the preparatory material for the design of the program itself". This article also states that "the ideas and principles underlying any element of a program, including those underlying its interfaces, are excluded from the protection granted by this law". Therefore, with copyright the source code is protected in the language in which it is written and in the same way the object code (i.e. the translation of the program language into bits or machine language) and the preparatory material are protected, but not the ideas and principles at the basis of the source or object code of a program.

Software protection

In order to obtain protection, software must have its own creativity, that is, originality in the representation of logical sequences. Creativity and originality can also exist when the work is composed of ideas and simple notions included in the intellectual patrimony of persons with experience in the subject matter of the work itself, provided that they are formulated and organized in a personal and autonomous way with respect to the previous ones. Moreover, software has an original intellectual identity if, although it makes use of the same algorithm of another program, it differs from it in the user interface, in the use of different programming languages and different processors. 

Protected subjects

In order to identify the subject protected by copyright, it is necessary to distinguish according to whether the software is created by a single person, in which case he/she alone has the right to be protected; by a group of people in a team, or by an employee of a specialized company (software house). 

In the case of software created in a team thanks to the collaboration between several authors in which each one has contributed in an indistinguishable and inseparable way, the copyright belongs to all the authors according to the regime of communion. The various shares are presumed to be of equal value unless otherwise agreed between the authors themselves. The protection of the moral right can be exercised individually by each co-author and the work cannot be published, if unpublished, nor can it be modified or used in a different form from that of the first publication, in the absence of an agreement between all the co-authors. However, it is specified that in the event of an unjustified refusal by one or more co-authors, the publication, modification or new use of the work may be authorized by the judge under the conditions and in the manner established by the court.

While in the case of software creation by the employee of a software house, generally when the author is bound by a subordinate work contract and the creation is the specific object of the work relationship then the economic exploitation rights are due to the company while the moral rights (the right to have the authorship of the work recognized) are due to the employee author.

Content of the right

The author of the software has a right to carry out personally or to allow others: 

  • the reproduction, permanent and/or temporary, in whole or in part, of the software by any means or in any form. Please note that as far as operations such as loading, displaying, executing, transmitting or storing the computer program require reproduction, such operations are also subject to the authorization of the rights holder; 
  • the translation, adaptation, transformation and any other modification of the computer program as well as the reproduction of the resulting work without prejudice to the rights of the modifier of the program;  
  • any form of distribution to the public, including the rental of the original computer program or copies thereof. Furthermore, it should be noted that the first sale of a copy of the computer program in the EU by or with the consent of the rightholder shall exhaust the right to distribute such copy within the Union with the exception of the right to control the further rental of the program or a copy thereof. 

Limitations on the owner's right

There are mandatory statutory limitations on the software owner's exclusive right. 

Whoever has the right to use a copy of the computer program can therefore without the authorization of the author make: 

  1. back-up copies necessary for the use of the program , which are, however, prohibited if the owner has already provided copies to the end user, or when the latter uses them separately from the original program; 
  2. analysis observations or studies or tests on the program or its elements in order to establish what are the ideas and principles on which they are based if the user performs such analysis in the course of the uses he is entitled to make; 
  3. decompilation of the program: the person who has the right to use a copy of the program or the original may locate the source code of the program only on condition that
    • this activity makes it possible to make programs communicable through their interoperability;
    • the information needed to achieve interoperability is not already easily and rapidly accessible; 
    • this activity is limited to those parts of the program strictly necessary to guarantee interoperability. It should be noted that any information obtained through decompilation may not be transferred to third parties.

Licence - commercialisation of the software

Software may be distributed in various forms through licenses. In relation to the legal qualification of license, a distinction must be made between: software license by which the personal enjoyment of the program is granted for a specific period; software use license by which the user of the program becomes the owner of the rights of economic use of the program. 

Furthermore, with reference to the distribution modalities, some types of software license can be classified: 

  1. Freeware, which represents one of the most widely used license types on the Web. The computer program can be copied and used free of charge, but the source code cannot be used without the consent of the author, who must be recognised the rights deriving from the intellectual property. To this category of programs belongs the widespread cardware that can be copied and used by anyone on condition that a communication is sent to the author as well as a symbolic sum in compensation for his effort. Also in this case, the author is not deprived of rights deriving from the authorship of the work.
  2. Shareware, with this type of license the programs circulate freely on the net and can be copied and used but within certain limits expressly indicated by the license itself, which may provide for the use within a certain time limit; the use of only a part of the program; the use of the program in a disturbed form.
  3. Public domain programs, these programs under the regime of public domain are those for which the author is completely deprived of any right recognized by the rules on intellectual property: anyone can copy and use the program freely by assembling it with others or modifying it, usually such programs are accompanied by the words "no copyright". 
  4. Open source, this type of computer program license is characterized by the fact that it allows the birth of a sort of open system that anyone can implement through their own contribution. One of the best known cases is the LINUX operating system designed in 1991 by a university student and developed thanks to the contribution of programmers from all over the world. Theopen source poses interesting problems under the aspect of intellectual property, but today the theory by which, given the constant contribution provided by more subjects, it should be framed in the category of collective works and as such protectable according to art. 10 Copyright Law is becoming more and more accepted.

This was a quick overview of the continuously evolving legislation and the possibility of protecting software under copyright law; the next section will deal in more detail with the subject of contracts and patentability of software.

Author

Valerio Capasso
Founder TORO Legal Hub

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