If you have created a computer programme — or software, as we all call it — protecting it legally is not an option, it is a necessity. Whether you design apps, video games or a complex business platform, knowing your rights will help you avoid plagiarism, disputes and legal headaches. In this quick guide, we will clearly explain everything you need to know about legal protection for software.
What is meant by ‘legal protection of software’?
When we talk about legal protection of software, we are referring to safeguarding the copyright on the programmes we develop. In the UK, this protection is set out in the Copyright, Designs and Patents Act, specifically in Title VII. However, in legal language you will not find the word “software” as such, but rather the term ‘computer programmes’.
Specifically, the official definition given by the Act is quite comprehensive: a computer programme is any sequence of instructions that allows a computer system to perform a specific task or achieve a specific result. It does not matter what language it is written in or how it is stored. Furthermore, the documents that accompany the programme, such as technical documentation and user manuals, are also protected. In short, not only does your source code have legal value, but so does all the material that facilitates its use or development.
Even so, for software to be protected, it must be original. There is no point in copying something that already exists or replicating functionalities without submitting creativity. Originality is the key to ensuring that your programme enjoys the protection offered by the law.
Furthermore, this legal protection of software extends to improved or derivative versions of the initial programme. So if you release an update or a variant, you can also rest easy: they are still under your legal umbrella.
Who is considered the author of the software?
Here we enter into an interesting topic. The author can be a natural person (like you, who has spent hours writing code); it can also be a company or a group of developers. In other words, it does not matter if you are a freelancer, work in a team or are part of a company: as long as you meet the legal requirements, you will have rights over your software.
Incidentally, when the programme is the result of the work of several collaborators, all of them will be considered co-authors, unless they agree otherwise. Each will have rights in proportion to what has been agreed.
Now, what happens if you have created a programme while working for a company? In this case, unless otherwise stated in your contract, the rights to exploit the software will belong to your employer. This includes both the source code and the executable programme. So, if you are a contracted developer, it is usually the company that can commercially exploit the software you have created.
A collective programme (for example, software developed by several teams under the umbrella of a company) also has its own particularities. In such circumstances, the legal author will be the person or legal entity that publishes and distributes the programme under their name.
How can you obtain legal protection for the software you create?
In reality, your rights arise at the very moment you create your programme. However, if you want to be well prepared for possible litigation or plagiarism, it is best to register it with the Intellectual Property Register (IPR). This step is not mandatory, but it is highly recommended, especially if you are going to release your software to the public.
Registering your software will allow you to officially prove the date and time you submitted the code. This way, if someone tries to copy it or claim it as their own, you will have strong evidence in your favour.
What if you want to keep your software secret? In that case, public register may not be the best option. There are other alternatives, such as:
- An escrow agreement or code deposit with a third party.
- Protection through trade secrets.
In reality, these options do not guarantee publicity of rights, but they do offer a private means of defence.
Requirements for registering your software with the IPR
If you decide to register with the Intellectual Property Registry, here is what you need to prepare:
- Author details: full names and identification details of everyone involved in the development of the programme.
- Complete source code. You must submit it in digital format, without compression or prior processing, so that any computer can read it directly. Also, be sure to clearly indicate the title and the name of the author or authors.
- Executable programme. Similarly, you must include the executable in an accessible and readable format without additional processes.
- Descriptive report. This requirement is essential to achieve legal protection of the software through the IPR. Essentially, the descriptive report is a well-bound, paginated paper document that includes:
- Brief description of the programme.
- Programming language used.
- Operating environment in which it runs.
- List of files that make up the software.
- Programme flowchart.
- Payment of fees. Registering your software has a cost that can vary. Therefore, it is best to check the updated rates with your intellectual property and intellectual property agent.
How to register your software with the IPR?
To register your software with the Intellectual Property Registry (IPR), you have two options: do it online or in person. Let’s look at each one:
Online application
Would you prefer to do everything from your computer? Great! You can file your application online through the Ministry of Culture and Sport’s Electronic Office. To do so, you will need a valid electronic certificate to access or use the Cl@ve platform in its Cl@ve Signature mode.
Please note: if you need to register a first registration with transfer of rights (for example, because you have purchased the software from someone else), this online method will not work for you. It only accepts simple registrations of new creations.
In-person application file
Of course, to obtain legal protection for your software through the IPR, you can also file your application in person. The forms are available at the Register offices or online in PDF format. For the first registration, you will have to use specific forms, depending on whether you are the author of the programme or whether there is a transfer of rights (between living persons or by inheritance).
For subsequent registrations (for example, if you want to register a sale or transfer), there are also specific forms.
Legal protection of software through an escrow agreement
Imagine that you develop software for a company and that company wants to ensure that, whatever happens to you (for example, if you close down or disappear), it will still be able to use and update the programme. For this purpose, there is the escrow agreement.
This agreement consists of you and your client depositing a copy of the source code with a trusted third party—a notary or a specialised company, for example. This third party keeps the code in conditions of maximum security and confidentiality.
Thus, if one of the agreed conditions is met (such as the closure of your company), the client will be able to legally access the code. Apart from this practical guarantee, Escrow also serves as proof of intellectual property, as it demonstrates that you are the original author of the programme.
If you value the privacy of your software and want to offer solid guarantees to your customers, the Escrow contract can be your greatest ally.
Protection through trade secrets
Another very effective way to legally protect software is to treat it as a trade secret. Basically, this consists of identifying the critical information or data in your programme—the code, algorithms, databases, etc.—and taking active measures to keep them secret.
How do you do this? First, by signing non-disclosure agreements (NDAs) with everyone who has access to the software: programmers, testers, business partners, etc. Such agreements must clearly specify:
- What information is considered secret?
- What behaviours are prohibited (e.g. copying, disclosing, selling…)?
- What security measures must be respected?
Protecting your software as a trade secret not only strengthens its security, but also allows you to defend yourself legally if someone steals or discloses the information.
Can software be patented?
Here comes a question that raises many doubts: can you patent your IT solution? In general, the quick answer is no, because both the Spanish Patent Law and the European Patent Convention explicitly exclude computer programmes as such.
The reason? According to these rules, a software programme is not a technical invention in itself, but rather a list of instructions or a set of mathematical methods. In fact, this is part of what cannot be patented.
But be careful, because there are important nuances.
For example, if your software offers a technical solution to a specific problem and demonstrates inventive activity in a technological field, then you may have a chance to patent it. These types of solutions are known as computer-implemented inventions (CII).
Which computer solutions are patentable?
In this regard, for a computer solution to be considered a patentable ‘invention’, it must meet certain conditions:
- Solve a specific technical problem.
- Submit an innovation beyond a simple list of instructions.
- Have a real and concrete industrial application.
Some examples of computer-implemented inventions that have been patented are:
- Specific technical methods that require computer execution.
- New types of data structures that solve technical problems.
- Innovative client-server systems.
- Secure encryption algorithms for communications.
- Improved data transmission devices.
- Physical simulation models developed for computers.
Do you need to obtain legal protection for the software created in your company? We can advise you
At ISERN, we accompany you throughout the entire process of legal protection for the software developed by you or your company. We provide personalised advice and take care of all the necessary procedures, including legal action to defend the rights derived from registering in the IPR. We have more than 101 years of experience in the protection of trademarks, patents and intellectual property rights. As if that were not enough, we put a team at your disposal. de más de 150 especialistas preparados para ofrecerte el mejor servicio, tanto en España como a nivel internacional.