Welcome to the Software Protection section
To protect a software or an App, it is necessary a specific analysis and the preparation of the correct documents with the support of an expert.
Laura Turini, Esq.
Head of the Internet & Software Department
Below you will find a list of the main topics on the subject, to help you to understand.
- The software and the program
- Is the software patentable?
- The software’s patent
- Copyright on software
- The right holder of a software
- Free licensing
- The duration of the protection
- The software’s public register
The software and the program
Some preconditions to understand
The software is made up by a series of information memorized on a computer device (hardware) and used by a computer system in order to perform precise operations.
The program instead consists of a series of instructions given by a machine so that it can perform a function or solve a certain problem.
The program is an object of the software and it is what is executed when the computer device is turned on, a computer for instance. Other objects of the software could be data, libraries (a sort of “accessories” of the program, that differently from it are not executed).
Therefore, the program consist of a series of instructions that are in turn the writing in a chosen programming language of an algorithm.
The software is therefore something of more complex and structured with respect to a program but it is often used as its synonym, as we would do in the following pages.
The algorithm instead is a proceeding which solves through a defined series of phases each of them elementary, meaning that they cannot be divided into other phases. An algorithm can evidently be translated in many ways and originate different programs all solving the same problem with the same method.
The protection recognized to the software could be very different according to the object that we want to protect.
If you are interested in protecting a program in the exact way in which it is written, the protection offered by the law on copyright is a good protection.
If on the other hand, you want to protect something wider, as the algorithm, the author’s law is not sufficient.
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Is the software patentable?
The history of how the protection of software was born
The choice to protect a software on the basis of the copyright law has substantially economic reasons and, as we would soon see, it is not excluded that the software could be patented even if there are not rules which explicitly foresee it.
The term “software” interpreted as instructions given to a computer was used for the first time in 1958 by the American statistician John Wilder Turkey.
In those years the software did not have much importance. Companies rather invested in hardware, computer, executing operations.
The instructions given by computers varied from machine to machine and the program was realized “ad hoc” depending on specific needs, therefore no one thought it has a particular commercial value.
Around the 1970s, people began to understand that the software was very important and it is an essential instrument in increasing the velocity of elaboration to the point of representing a threat for the increasing velocity allowed by the hardware (second law of Moore).
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As Stewart Brand said
software users had always used greater processing capacity to a velocity equal or superior to that with which chip producers made it available.
In those years, the legal debate on the nature of software and therefore on its form of protection began. Some supported that it has a technical nature and that it could be protected as an invention, others that it was a peculiar form of writing.
This second solution prevailed, for political rather than substantialreasons.In fact, it was feared that the protection offered by the patent could be too strong and that it could obstacle the competition.
Thus, with the computer softwareAmendment Act of 1980 it was amended the US Copyright Act and included the software as protected work.
To this view subsequently adhered some European countries such as the UK and France up to the European Directive91/250/CEE which introduced the software among the goods that could be protected by copyright.
The software’s patent
Copyright on the code
The only protection explicitly foreseen for the software is that established by copyright and we will now see its characteristics.
Someone thinks that the protection offered by copyright is sufficient and fears that a wider protection, as the one that could be obtained by a patent risks limitingthe competition.
Others on the contrary think that the protection of the copyright is too weak and that it does not protect the investments made by companies to develop new programs. In particular the greater risk is represented by the so-called “reverse engineering” by which developers may go back to a program and its flowchart to create then a brand new programperforming exactly the same functions, damaging thus the first developer.
During the years, many national offices faced the problem of the patentability of a software with different results.
The European situation
In Europe there is not a law explicitly allowing to patent software inventions but it is always more frequent the granting of patents which subject is a computer program.
The European Patent Convention (art.52), like the Italian Code of Industrial Propriety (art.45), exclude the patentability of the software only if it is considered “as such” but not completely.
You: So, can I patent a software?
Yes. Interpreting such legal provision, people came to recognize the possibility to patent a software with specific characteristics.
Firstly, a software, like every other invention, in order to be patented should have a “technical character”.
Therefore, it should be a software that wants to solve a technical problem (for example, improving the break performance of a vehicle) and furnish a solution having technical elements consenting to obtain a technical effect (for example, optimizing the breaking).
The software may, thus, represent a concrete technical element, in the form of programmed processor, interacting with other components of a machine to control some functionalities, becoming a technical means that solves a technical problem and as such becoming patentable.
Therefore, it was decided that a software is patentable if it has a technical character originating from a technical effect of the functioning of the software that goes beyond the simple physic interaction between software and machine (T1173/97).
Can you give me an example?
Yes, for example a program that controls and manages an oven in an industrial plant, or a software improving the internal memory of a computercan be patented.
A program doing calculations or a managerial, on the contrary, are normally not patentable if they are limited to process information without producing technical effects.
The patent allows to protect the functions of the software independently from the code in which it is written and it guarantees a major protection compared with the copyright.
It is not simple to evaluate when a program is patentable or not therefore it is always necessary the help of an expert.
Copyright on software
Paternity as a protection
The software is expressly protected by the law on copyright.
As established by the Legislative Decree of the 29th December 1992 no. 518, implementing the European Directive 91/250/CEE,
Art. 2 LA includes in the list protected works:
computer program, expressed in any form provided they are original and the result of the author’s intellectual creation. The ideas and principles at the base of any element of a programmed are excluded from the protection accorded by the law, including those at the base of its interfaces. The term programmed also includes the preparatory material for designing the programmed itself.
The copyright law protects programs considering them as literary texts.
Copyright protects the code of the program but it is still a good protection, easy to call in court in case there is a literal copy, even partial, of the code.
The source code is protected in the language in which it is written and the object code equally, or the translation of the language of the program in bit or in machine language.
The protection is extended to preparatory works including flow charts expressing ideas and principles at their basis without protecting the ideas “in itself”.
Only the expressive form is protected. It is the same for the interface that is considered in its entirety from the point of view of the usefulness and of the computer technique. If in the interfaces there are moving images or other creations, these should be independently protected according to the general rules of the law on copyright.
Which are the rights of the author
According to art. 64-bis LA, the owner of a computer program has the exclusive right to do or authorize:
a) Reproduction – , permanent or temporary, total or partial, of the computer program with any means or in any form;
b) Modification – the transformation and any other modification of the computer program, a part from the translation and the adaptation;
c) Distribution – any form of distribution to the public, included the location, of the original computer program or copies of it.
Even for programs, as for the other works protected by copyright, there is the principle of exhaustion.
So, the first sale of a copy of the program in the European Economic Community by the right holder ends the right of distribution of such a copy inside the Community, with the exception of the right of controlling the additional location of the program or of a copy of it.
The right holder of a software
Who benefits from the rights?
The general rule is that the holder of the copyright, and as a consequence of the copyright on the software, is the one who created it.
Only the natural person, or the group of people that concretely created the program, can be the author. A society or a company cannot be the author, however it can buy these rights.
Which rights will you get?
We distinguish into 2 types: the moral rights and the economic rights.
1) The Moral right is the right to be recognized as the author of a program and it is a right that cannot be assign or transfer.
2) The economic rights instead are the faculty to the exclusive use of the software and they can be assign upon payment or for free.
There are also cases in which the author of the program is not the holder of the program because of the type of relation that gave origin to the program itself.
Software realized by an employee or on commission.
The software realized by an employee is propriety of the employer (art. 12-bis LA), unless agreed differently. Even the software realized on behalf of a Public Administration is its propriety (art. 11 LA).
In case the software is realized on commission, the law does not explicitly discipline who will be the holder of the economic rights of the program that will be realized, so it is a good rule to discipline this aspect with a contract.
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- The analysis of your software
- The indication of the most effective protection
- The estimate of costs
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There are some activities that the holder of the program cannot prevent or limit.
In particular the holder cannot prevent:
- The activities that are necessaries to use the program for its destination by the legitimate buyer;
- The realization of a back-up copy of the program, if such a copy is necessary for its use;
- Those having the right to observe, study or test the functioning of the program at the aim of determining the ideas and the principles on which each element of the program itself is based, if s/he performs these acts during the operations of loading, visualizing, execution, transmission or memorization of the program that s/he has the right to execute (art.64-ter).
Moreover, the authorization of the holder is not requested when the reproduction of the program and its translation are indispensable to reach the interoperability with other programs at the conditions foreseen by art. 64-quarter LA.
If in a contract provisions are added that do not respect what is written above, such provisions are invalid.
The duration of the protection
The author whole life and 70 years after his/her death
The copyright on the program, like all the other works protected by copyright last the author’s whole life plus 70 years after his/her death.
In case of assignment of the economic rights, the duration will be calculated considering the life of the author independently from the buyer.
The protection of the software in different countries.
The software is protected on the basis of the national law of the country in which the product is distributed.
The European regulation is balanced but there could be applicative differences that should be individually evaluated.
Even more for the extra-EU countries. Even if the recognition of the protection of the software is recognized, in many countries it is still appropriate to concretely examine each time the local regulation.
The software’s public register
How to protect a software
The rights on the software, like all the works protected by copyright, arises with the creation of the work.
Therefore, any type of administrative fulfilment is not needed, be it a filing or a registration, as it happens on the contrary for patents and trademarks.
Proofing the paternity
Nevertheless, filing a work in the competent offices has the advantages to furnish to the author an indisputable proof of the date of creation of a certain work, useful also to claim damages in case of plagiarism.
In the Public Register of Software a program already published can be registered.
In order to proceed, a specific application should be prepared where should be indicated the data of the holder and of the author, the place and the day of publication, the title and the description of the program. There should be also indicated if it is a base or application program and the genre (writing, compiler, utility, game, database, communication, etc.) of the program, the type of hardware, the system and the operational environment, the language.
A sample of the program on an optical media, normally on a CD-ROM, that should be signed has to be filed.
The filing, once done, has not to be renewed.
In case a program has future implementations, even new versions of the program should be registered.
On the contrary, if the program has not been published yet it is possible to file it as an unpublished work to the SIAE.
In order to do a filing, it is necessary to fill a specific application and attach the copied program on a magnetic device.
This copy, accompanied by a declaration of paternity, is stored at SIAE in a closed envelope and guarded without making it available to the public. The depositor will receive a certificate with the archive number given to the filing.
The filing lasts 5 years and it can be renewed at the expiration for an equal period, except the faculty of the holder to withdraw the work in every moment.
If at the expiration the holder does not withdraw or renew the filing, the SIAE consider itself authorized to distribute the material.
The link of the full text of the regulation
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