Most of the time, the registration of a patent is strictly recommended to protect a software. First, you may have to register your software with the Department of Intellectual Property (DIP), which confers exclusive rights to the inventor for a limited period of time. In order to benefit from this procedure, your software must meet the following conditions:
|➤ A new creation|
|➤ An inventive step|
|➤ Not protected by patent law (e.g. computer data system)|
Then, the software copyright application must include various documents, namely the application form (001-kor), elements describing the software (title, technical field, history, etc.), a claim or other supporting documents (depending on the nature of the procedure).
Copyright protection is acquired without any formality. The software is protected as soon as it is created and this for a period of 70 years from the death of the author or, if it is a legal entity (company, association, etc.), from the date on which the software was made public. It is not necessary to affix the famous Copyright symbol on your software that is often found on websites.
Subject to originality, the elements of the software that can be protected by copyright are the following:
|➤ The graphic interface: It allows the user to interact with the program and is recognizable by its visual aspect|
|➤ The name of the software: It identifies the software and can also be the subject of a trademark registration|
|➤ The user's manual: It helps the user to understand how the software works|
|➤ The program: It is that what includes the source code, the object code and the executable file|
|➤ The preparatory design material: This is the set of works that contributed to the creation of the software (prototypes, reporting, etc.)|
On the other hand, the algorithm, considered as a series of ideas, cannot be protected by copyright. The same goes for the software’s functionalities and the specifications.
If your software is a video game containing music, you should know that it is protected by copyright thanks to the protection of musical works and that it is possible, under certain conditions, to register it with a society of authors.
As an author, you have economic rights that allow you not only to obtain a remuneration for the use of your software, but also to determine how it is used. In particular, you can decide to prohibit or authorize the permanent or temporary reproduction of your software, in whole or in part. As well as the translation, adaptation or modification of your software.
Please note that, unless otherwise stipulated, the right to withdraw and repent as well as the right of disclosure, which are part of moral rights, do not apply to software. As for the other moral rights, which are non-transferable, they have been arranged and include:
A right to the respect of your name: this right of paternity allows you to claim that your name appears next to your software, even if you have given your exploitation rights to a third party; and
A right to the respect of your software: which allows you to oppose any modification that would distort your software. However, if you have assigned your economic rights on your software, you will have to prove that the modification made by the assignee is detrimental to the reputation of your software in order to benefit from this right.
In principle, the person who created the software owns the rights to it. However, it is not uncommon for software to have been developed by several people or in the course of the author’s professional activity. Several cases can thus arise:
|➤ If the software is a collaborative work between several authors, the latter will then be co-owners of the rights on their common software. The decisions concerning its exploitation will thus have to be taken by unanimity|
|➤ If the software has been created at the initiative of a physical or moral person who publishes it, then this person will be considered as the owner of the software|
|➤ The user's manual: It helps the user to understand how the software|
|➤ If the software is a commissioned work, the author remains the owner of the rights on his software except in the case where a license or assignment contract has been signed|
|➤ If the author of the software is an employee who operates within the scope of his duties or on the instructions of the employer, the latter will automatically obtain the economic rights on the software developed by his employee|
If your software is infringed (copying without your consent of all or part of your software), you can take legal action to stop the infringement and obtain, if necessary, damages. The proof of the infringement is free and can be done by any means, in particular by a seizure. This procedure allows a bailiff to inspect the counterfeiter’s premises, without the counterfeiter being notified, and thus seize material evidence of the counterfeit.
However, in order to stop the infringement, you must prove that you are the author of the counterfeit software. In order to do so, you will have to establish one or several anteriority proofs that can prove the date on which the elements of your software were created. Blockchain time-stamping is one of the methods you can use right now to protect your software creations.
You have published a software and you wish to grant your client the right to install and use it? Contact our intellectual property lawyers to discuss a software license and maintenance agreement to learn the keys to entering into such an agreement.