Welcome to the Software’s Licence section
To protect a software, 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 contract of software development
- The contract of software assignment
- The contract of software licence
The license agreement is the most widely used instrument for the software’s marketing.
This is an atypical contract, as the law does not regulate it, it is bound by consent and generally requires a payment.
Through this contract the licenser (owner of the software) grants the licensee the right of the software for a period, either definite or indefinite, and through a royalty payment.
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The contract of software development
The contract of software development is the contract by which a company or a person charges one or more programmers to realize on its behalf a computer program carrying out precise functions.
In the contract of development, the costumer (or the one who charges the programmer) knows what to obtain but s/he has not the technical ability to realize it. As a consequence, the contribution of the programmer is very important since s/he should advise the best technical solution in order to obtain the searched result.
This contract can be viewed as a contract or as a works contract if the programmer is a company or an independent contractor.
According to the Civil Code, different responsibilities are the consequence of the different qualification of the contract but nothing changes in reference to the transfer of the rights on software. Such rights should be passed to the costumer but since copyright is greatly differentiated is strongly recommended not only to prepare a written contract, but also try first to foresee the object of the contract and then the faculty and the rights of the parties involved.
The first thing to be highlighted in a contract is the type of software that has to be realized.
Even if this aspect could seem trivial, in reality it is essential in order to avoid future disputes and to establish what the developer should do, as included in the contract, and what on the contrary represents a modification or an addition not foreseen. From the practical point of view, the contract of software development are always backed up by one or more attachments describing in detail what will be developed and which functions will be included in the program.
Among the most important element to keep in mind in the consideration while writing a contract of software development we remind you to indicate the type of machine on which the program should function, the method of the test, specifically identify the one who is the owner of the software that will be realized, asking to the programmer to declare that the program is original and the product of his/her work and foresee a period of intervention for probable bugs.
As for all contracts, but mainly in this case, it is very infrequent to use standard contracts since every contract of software development is a sort of bespoke suit which should be realized on the basis of specific needs.
The contract of software assignment
The contract of assignment of a software is comparable to a commerce so that it presents a minor complexity if compared to a contract of software development. Nevertheless, given the particular object of the contract, even in this case it will be necessary to pay a particular attention to all the issued involved.
A first aspect which should be taken into account is the necessity to foresee is the assignment of the source code without which any probable intervention on the product will not be possible.
Moreover, it is important to contractually foresee the possibility to modify a software since the original author could oppose to an intervention of third on the work created.
Potential copies of the program which could be stored by the assignor and the possible reproduction of part of the code represent another problem. All these aspects and others should be taken into account in order to avoid buying an empty box.
The contract of software licence
The licence contract is that contract by which a software, of which one keeps being the owner, is not sold, but it consents the use by a third party.
Licences present different issues if are involved licenses on standard programs or on personalized programs. Standard licences are known by everyone and they are of different types.
Among the model of licences for a standard program one of the most spread because of the necessity to make the commerce of the software quicker and the impossibility to use the written form for the relative transactions is the so-called the shrink-wrap license.
In this case the support containing the software is contained by the licenser/producer in a wrapper showing on the outside the general conditions of the contract, and the same contract is concluded at the time the user actually opens the wrapper without the necessity of any signatures.
From the economic point of view the cheaper license is the OEM which is automatically concluded with the purchasing of the hardware where the program has been installed. The main characteristic of this contract is of being directly connected with the purchased computer. Some software producers have made an agreement with the PC (knows as OEM, Original Equipment Manufacturer) producers, to which the authorization is granted, to install on the hard disk of their computers their operating systems, which, however, cannot be sold separately from the hardware.
It is always a good rule knowing what the licence content is before buying a product, even if this is actually imposed by the seller, therefore the only choice is whether to accept it, or not to use the software.
Even if these licences are imposed, it is a good rule to know the content of the licences before buying a product.
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Another type of software licence contract is the open source, through which the licensee has the right to access to the source code of the software, to modify it to create other programs and make copies both of the original software and of the program reprocessed by him for their distribution, even requiring royalties.
The software producers often need to prepare ad hoc licenses “ad hoc” in addition to sign specific contracts with their own developers, in order to be certain to have all rights on the program and to be able to distribute it without inconveniences.
These kinds of contracts must be examined and written individually for each single case.
The variables on a licence contract can be various. It is possible to prepare contracts of licence with which one gives the right to use the program for a limited or unlimited period upon payment of an annual or one-off fee, trial contracts with which the software is granted to the licensee on trial, for a certain time during which he will evaluate whether to buy it and at its expiration if s/he wants to keep using s/he could do it by paying the entire fee.
Personalized licence contracts are very delicate and it is necessary to pay attention to them even during the analysis of their needs and the expectations of the licensor.
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