A multitude of services are based on software: office software, banking applications, logistics software, e-commerce sites… They are everywhere and are becoming indispensable: they have a great value. Moreover, their design often requires significant investment. It is, therefore, essential for software developers and companies to protect their creations.
1) How to protect my software?
Software is a combination of several elements: it consists of “all the programs, procedures and rules, and possibly the documentation, relating to the operation of a data processing system” (French decree of 22 December 1981 on the enrichment of the French language). It is not defined by French law, which allows different types of software to be covered.
Software is mainly protected by copyright. There is no global protection of software, each element must be isolated to examine its protection. Depending on the isolated element, it could be protected by classical copyright, or copyright specific to software, or another right, or even be unprotectable:
Elements protectable by classical copyright:
- The graphical interface – the visual, also protected by design law.
- The user’s manual.
- The software title – also protectable under trademark law.
- The specifications.
Elements protectable by specific copyright law:
- The program – i.e., the source and object code.
- Preparatory design material – functional and organic analyses, mock-ups, prototypes, flow charts, internal and external specifications, and functional architecture…
Non-protectable elements:
- Algorithms (they are considered as ideas).
- The programming language.
- The software functionalities (also considered as ideas).
These non-protectable elements may however be defended under certain conditions by an unfair competition action or secured under secrecy. Also, databases may benefit from special protection.
- Can software be patented?
A patent is an intellectual property right that protects a product or process that provides a new technical solution to a given technical problem. Computer programs as such are expressly excluded from this protection (Article L611-10 of the Intellectual Property Code).
However, if the software is part of an invention and constitutes a step in its operation, i.e., if it is integrated into a product or process, the functionalities and technical elements of the software may be protected (and not the source code, graphic interface, etc.). This also applies if the software has a technical effect which goes beyond the normal physical interaction between the software and the computer on which it runs (e.g., software for encrypting electronic communications). The protection does not cover the entire software.
2) The specific copyright protection.
Software is considered an intellectual work and is protected by copyright law, a branch of intellectual property. This right protects creations of all types (literary, musical, graphic, scientific, etc., except for ideas and concepts), regardless of their form, genre, merit, or purpose.
Software copyright is specific in that it has additional exceptions to traditional copyright law due to the specificities of the software industry. The object of protection is the source and object code, as well as the preparatory design material.
- Which requirements apply to software copyright?
Software copyright protects a software provided that it is original, i.e., an intellectual creation of the author’s own and that the author has made his/her own intellectual contribution and personalised effort, as opposed to mere intellectual know-how and technique.
The work must also be fixed, i.e., materialized. Indeed, this right protects the form of the work.
- Which rights are granted?
This protection provides economic rights on the work, opposable to all, which allows to control its exploitation (via licenses for example), its distribution and to prohibit or authorize the reproduction, modification, or translation of the work, with exceptions (e.g.: reproduction for educational or personal purposes, exhaustion etc.). It allows infringement proceedings to be brought. Specific exceptions exist for software, such as the use of the software in accordance with its intended purpose by the person entitled to use it. This exclusive right lasts until 70 years after the death of the author.
It also grants a moral right which allows the author to object to a use which would distort the work (right to respect) or to request the mention of the author’s name. This moral right is perpetual. Again, there are exceptions for softwares (e.g., the right to respect is weakened because it can only be invoked if the author’s honour or reputation is harmed, there is no right of withdrawal or repentance, etc.).
Under traditional copyright law, the owner of the copyright is the person who creates the work. However, for software copyright, ownership is vested in the employer if the software is created by an employee in the course of his/her duties or following instructions from the employer (this is also the case for trainees since the French Order of 15 December 2021). Exceptions exist, for example with regard to external service providers. This is an important issue to be regulated in the contracts.
- How to benefit from copyright protection?
This protection is automatic: it arises from the mere fact of creation by the author. Copyright does not require registration with an intellectual property institution.
However, it can be difficult to prove the date of creation or who is the author. It is therefore advisable to build up proof to be able to attest the date and ownership of the creation, using proof of anteriority, such as the Copyright.eu certificate.
3) How to secure my copyright with the Copyright.eu service?
The Copyright.eu certificate of anteriority enables you to prove that your creations existed at a certain date and that you are the author. This type of service is important, as seen previously, for creations that depend on copyright.
It is, in fact, essential to obtain proof of anteriority to be able to prove that you are indeed the author of your creation at a certain date. This makes it easier to claim your copyright, particularly in the event of future copying or challenge by a competitor or in the event of a dispute over confidentiality.
The Copyright.eu anteriority certificate provides indisputable proof of anteriority, through the intervention of a Bailiff (depending on the offer selected), but also through the qualified electronic timestamp, which has evidential value, including internationally.
Also, if the software is associated with an invention, Copyright.eu certificates can be used to benefit from the right of prior personal possession. For more information, we recommend our article on securing inventions with the Copyright.eu certificate.
To apply for a Copyright.eu anteriority certificate, the process can be completed online. Please visit the following address: https://www.copyright.eu/depot-copyright-en-ligne/fonctionnement/
