Software development requires significant investment, while software as a digital product is very easy to copy. Effective legal protection is therefore crucial to reward innovation and allow competition to take place on a fair basis. In Belgium - as in the rest of the EU - software can be protected in two ways: through the copyright and (in more limited cases) through the patent law. Below we explain both protection mechanisms, with their conditions, possibilities and limitations.
Copyright protection of software
What exactly is protected by copyright law?
In Belgium, software is explicitly protected by copyright under Book XI, Title 6 of the Code of Economic Law (Article XI.294 et seq.). These provisions are the transposition of the European Software Directive: thus, the following rules apply to all EU member states. It should be noted that the general rules of copyright law apply to software, unless certain aspects would otherwise be governed by Title 6 (this would be software copyright).
Software copyright gives protection to the "mode of expression" of a computer program. This mode of expression is the code, and specifically the source code (source code) and the executable code (executable code) or target code (object code). Requires, however, that the code original is in the sense that it is the author's own intellectual creation. In other words, the author must have put his or her own stamp on the computer program through free and creative choices. Trivial code or code dictated entirely by externally imposed rules will not count as "original." The preparatory material (the so-called pseudocode or flowcharts) is also co-protected by software copyright law.
There is no protection granted for the functionalities of a computer program, the programming language and the format of data files used in the context of a computer program to exploit some of its functions. Thus, a software developer can act against literal copying of its code, but cannot prevent a competitor from developing a similar application based on its own written code.
The graphical user interface is not protected by software copyright, but may possibly enjoy protection under ordinary copyright law.
This protection arises automatically - without any registration or formality - at the time the software code is created.
What are the rights of the creator of a computer program?
Copyright grants the creator a number of exclusive property rights on his computer program. Specifically, the rightholder may prohibit others from doing so without his permission:
- The software to reproduce (copying the code)
- The software to edit (e.g., translations, code edits).
- The software to distribute (selling a copy of the software)
- The software to the make publicly available (e.g. making the software available online for download) .
In addition, the creator of a computer program also has two moral rights, being the right to name calling and the right to oppose any disfigurement, mutilation or alteration that would damage his honor or good name.
The creator of a computer program can exercise these rights during his entire lifetime and - by his heirs - until 70 years after his death.
Are there exceptions to exclusive property rights?
The general exceptions to copyright law are almost all applicable to software as well.
However, software copyright law also has a number of specific exceptions. For example, the legitimate user can:
- perform acts necessary to enable the program to be used for its intended purpose, including the correction of errors in the code.
- a backup make, to the extent that such copy is necessary to use the program.
- observe, study and test the operation of the program in order to determine what ideas and principles underlie any element of the software, if he does so in the lawful loading or imaging, execution, transmission or storage of the software. This is the so-called black box analysis.
- reproduce the code and translate the code form to meet reverse engineering or decompilation to do. This is permitted only when it is indispensable to obtain information necessary to establish compatibility of an independently created computer program with other programs (such as linking an application to Windows). Moreover, the decompilation must be limited to those parts of the original program that are necessary to establish this compatibility. Finally, the information obtained by virtue of the decompilation must not be used for any other purpose and must not be communicated to third parties unless such communication is necessary for the purpose of achieving compatibility of the independently created program.
Exhaustion rule and software sales:
In principle, a copy of a software program can only be sold with the permission of the owner. However, there is an important exception to this, namely that of community depletion. Once a copy of a computer program has been sold with the consent of the rightholders within the European Union, the rightholder cannot oppose the further resale of this copy.
The European Court of Justice ruled in the UsedSoft/Oracle case that this principle applies not only to a physical copy (e.g. on CD or DVD) but also to a copy downloaded from the rightholder's website under an unrestricted license. Both copies can be resold. In concrete terms, this means that when a company purchases a software package (with a perpetual license), it can, under certain conditions used may resell. Software vendors should take this into account in their business model - for example, by working with subscription formulas or terms of use - as their distribution right is otherwise exhausted after the first sale or permanent licensing.
As an employee, do I transfer my copyrights to my employer?
In the case of software developed by employees or officials, software copyright law provides that the employer is deemed to be the holder of the exclusive property rights (unless the employment contract or statute would have agreed otherwise). This is a departure from general copyright law where an employer can only obtain the copyright if a transfer of copyright is provided for in the employment contract or statute.
Note that this derogation does not apply to software developed under contract by freelancers or by the directors of a company who are not employees. Here, an automatic transfer of rights does not apply and an assignment must be contractual.
Patent protection for software
Patent in brief
A patent (patent) grants an exclusive right to an invention, allowing the patentee to prohibit others from commercially applying the invention in the patented field and during the patent term. To be patentable, an invention generally must meet the following requirements criteria: she must new be, a inventive have character (are not obvious) and industrially applicable are and are not under a legal exclusion fall In addition, patent law requires that the invention have a technical nature has - in other words, provides a technical solution to a technical problem.
Software 'as such' excluded
In the EU (and thus also in Belgium) are "computer programs as such" excluded from patent law protection. This is a difference from the United States where patents on software are fairly easily granted. This ground for exclusion finds its basis in the European Patent Convention (arts. 52.2.c and 52.3) and the Belgian Code of Economic Law (Art. XI.4, §1).
Technical character and "further technical effect"
However, this ground for exclusion does not apply to a computer program that is technical in nature, meaning that when executed on a computer it has a "further technical effect" should provide. A further technical effect is a technical effect beyond the "normal" physical interactions between the program (software) and the computer (hardware) on which it is executed. The normal physical effects of a program execution, such as circulating electrical currents in the computer, are in themselves insufficient To give a computer program a technical character.
Examples of further technical effects that give a program technical character include the control of a technical process or of the internal workings of the computer itself or its interfaces.
Assessment of technical impact and comparison with existing technology
The presence of a further technical effect is assessed without considering the existing state of the art. It follows that a computer program that serves a nontechnical purpose and requires less computing time than an older program with the same nontechnical purpose does not automatically have a further technical effect. Similarly, it is comparing a computer program to how a human would perform the same task is not an appropriate basis To determine whether the program is technical in nature.
Once it has been determined that a computer program is a further technical effect has, then the computational efficiency of an algorithm contribute to the technical nature of the invention and thus to the inventiveness. This is true, for example, if the design of the algorithm is motivated by technical considerations regarding the internal workings of the computer.
In any case, a computer program can acquire no technical character simply because it is designed to be automatically executed by a computer. There are additional technical considerations needed that relate to the technical considerations of the internal workings of the computer and go beyond simply finding a computer algorithm to perform a task. These considerations must visible are in the claimed characteristics that cause a further technical effect.
An often-cited example: an innovative operating system for a medical scanner or a software-controlled robot may be patentable because the software therein produces a technically measurable effect within a device. In contrast, management or business software without a technical character (e.g., a pure business administration app) are not patentable under the current legislative framework.
Computer-implemented inventions
The term "computer-implemented invention" refers to patent claims involving computers, computer networks or other programmable devices, where at least one feature is realized through a computer program.
An computer program and a corresponding computer-implemented method its different concepts. A computer program refers to a set of instructions that can be executed by a computer that specifies a method. A computer-implemented method refers to a method that is actually executed on a computer.
Patent claims that relate to a computer-implemented method, computer-readable storage medium or device cannot be rejected based on the above-mentioned exclusion ground of the argument since any method that uses technical means (e.g., a computer) and elk technical means themselves (e.g., a computer or computer-readable storage medium) have a technical character and thus constitute an invention within the meaning of the law.
Possibilities and limitations
Obtaining a software patent is anything but straightforward. One must go through a challenging application process with the patent authorities (in Belgium through the FPS Economy or often with the European Patent Office for broader coverage). This process costs time and money, and the outcome is uncertain because the application is rigorously tested for technical contribution and inventiveness. Many software companies forgo this if their software has no obvious technical effect or fear that the rapid evolution of software makes the 20-year term of a patent less relevant. Still, patent protection can be interesting for certain software innovations that solve a fundamental technical problem. Indeed, a patent provides a stronger monopoly position than copyright: it allows action to be taken against any unauthorized use of the patented technique, even if the infringer developed it entirely independently (without copying). This complementary nature makes Copyrights and patents are regularly used side by side to protect software in the best possible way. For example, copyright covers the code and form of the software, while a patent is the functional concepts or practices behind the software can shield. Of course, cumulative protection is only possible when the respective conditions are met (originality for copyright, and technical-inventive contribution for patent). In many cases, additional reliance can also be made on trade secrets (secrecy of source code/algorithms) and contractual clauses to protect knowledge, especially if patenting is not feasible.
Conclusion
Both copyright and patent law - each in their respective fields - can provide valuable protection for software. Copyright arises automatically and is ideally suited to protect the written code, structure and documentation of a program from being copied. Patent law requires an investment and strict conditions, but offers the possibility of the technical key ideas behind software exclusive exploitation, which goes beyond the scope of copyright. In practice, the two forms of protection regularly complement each other to secure both the form and functionality of software.
Given the complexity and potential high value of software intellectual property, it is advisable to timely specialist legal advice inquire. A law firm with expertise in intellectual property rights can help to make the proper protection strategy tailored to your software so that innovations are maximally protected within the applicable Belgian and European framework.
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