The software industry thrives on innovation and the developers are constantly moving forward, pushing the boundaries of what we think is possible. But even despite the creativity displayed by developers all over the world, there are a few bad apples that present potential risk to everyone. So how do we protect ourselves? In this article we look at the legal framework around source code and whether it can be legally called intellectual property (IP).
In copyright legislation around the world, source code is considered the intellectual property of the creator. Source code is protected in the same way as a “literary work”, which means it is copyrightable from the moment that the first line of code is created. This gives software companies some legal protections around their code, but to maximize the protection they must register the copyright to one of the national or international Offices that protects ideas, artistic works, inventions or other intellectual property rights.
However, software can differ in many ways to standard copyrighted intellectual property. This means that software development companies have to use a variety of other legal methods to ensure that their ideas and creative work won’t be stolen by others, which can really affect and influence the company’s profits and reputation.
Copyrighting your work can prove to be problematic for a variety of reasons. For a start you may have to publish details of your work in copyright documentation, which can give competitors an edge. This is why software and tech companies generally use patents to protect their initial idea.
The ideas expressed / concretized can be protected by means of copyright, rights that offer to their holder exclusivity of exploitation and use of the creative and artistic work in the desired way. It can be framed in several fields, such as literature, music, film, painting, but also software, databases, technical drawings or maps. In order to be able to discuss copyright protection, the work must be original, as these rights do not prevent third parties from using the idea and expressing it in a different way.
By obtaining a patent, its owner has the right to decide who has the right (or not) to make use of the patented invention during the period of protection. Specifically, this is embodied in the prohibition of the marketing, use, distribution, import or sale of the invention without the consent of the patent owner. Patents can be granted for inventions in any technological field, from everyday kitchen utensils to nanotechnology chips. The invention itself can be both a product and a particular process. For software development companies their created work is their source code.
For software companies this can be a bit of a minefield, as a lot of software duplicates the end function of other software that might be available on the market. For example, you may have created an app for IPad that helps people organise their free time, but there are other apps available on the market that can do the same thing. But a patent could help you if there was a feature of your created app that worked very differently from anything else on the market, an original or unique feature. So, you would apply for a patent for that component of your application.