Software nowadays requires multiple protection to ensure that its various aspects are protected, but also that the owner of the software can effectively act against third parties who would copy this computer program or consider it as an inspiration source.
1. Software copyright protection
Software protection is normally obtained by copyright. This protection is automatic; it is created as soon as the code has been written by its author. However, there is a dual problem
- of proof of right with respect to third parties, in particular regarding content of the code on a specific date.
In order to avoid any disputes, it is possible to file the computer code as i-DEPOT with the Benelux Office for Intellectual Property (BOIP). This filing, which is valid for a renewable period of 5 years, makes it possible to prove the existence and content of the source code with a reliable date. As the i-DEPOT is not accessible to third parties, and the BOIP guarantees confidentiality of the content, this is an extremely effective tool.
- of acquisition of rights.
Indeed, it is very common for software to be developed, partially or completely, by external providers. It is therefore essential to transfer copyright to the structure that initiated (and financed) the development. This transfer will generally be done by private agreement.
It remains to be noted that according to case law of the CJUE (C-406/10), neither the functionality of a computer program, nor the programming language, nor the format of data files used in a computer program to exploit some of its functions constitute a form of expression of that program. They are therefore not protected by copyright.
The name or brand of the software is actually a trademark. The use of this sign does not create any rights. Only the registration of this sign as a trademark gives its owner an exclusive right.
The trademark must be protected for the goods and services for which it will be used.
It is obviously recommended to carry out preliminary searches concerning the sign to be protected for activities related to the software, among earlier trademarks but also among domain names.
Based on the results, and on an analysis of the project with its markets and opportunities, a strategy for the filing, development and protection of trademark rights will be implemented.
3. Screen displays protection using Designs
The appearance of a piece of software, its usability and its “look and feel” are nowadays of particular relevance and often ensure its commercial success. Therefore, software appearance on the screen (screen layout) implies a specific spatial distribution of information and a specific graphic representation. Such screen displays can be protected as registered designs.
It should be noted that a design must be new, i.e. it must not have been made available to the public. It is therefore necessary to file the application before the public launch of the software or application.
A registered design will protect its owner against all screen displays that are identical or produce the same overall impression, in view of the original elements of the registered graphic representation.
4. Patent protection
According to the European Patent Law, computer programs “as such” are excluded from patentability. However, the Boards of Appeal of the European Patent Office (G 3/08) are of the opinion that computer-implemented inventions may be patentable if they make an inventive technical contribution to the state of the art, regardless of whether they are implemented by hardware or software.
The mere automation using a computer and business or administrative methods (e.g. auction rules or rules regarding documents filing) do not fulfil this criterion. However, software intended for the control of a machine or for telecommunication or encryption processes is eligible for patent protection.
It will therefore be necessary to conduct a case-by-case analysis to determine whether a “software” invention makes an inventive technical contribution and is thus patentable. A patent is the only tool capable of protecting software functions.
It is essential to consider the various aspects and rights covering software to obtain effective protection: sole protection through copyright is insufficient. The creation of multiple rights will both prevent copying of the software and ensure the best possible valuation of the software and the rights deriving therefrom.