Protecting intellectual property rights in software can be a tricky area to navigate. One of the main reasons for this is that there is not really any useful definition of ‘computer program’ or ‘software’ in UK legislation.
What is Software?
There are a number of definitions which have come from various parts of UK legislation. However, the most sensible approach is to consider the meaning of “computer program” in the technical sense. In other words, a set of instructions according to which a computer will carry out certain acts or functions (such as displaying text or images on a screen).
These instructions are commonly broken down into two parts:
- Object code which is the language capable of being understood by a computer and usually what is supplied to those who are licenced to use the software; and
- Source code which is the original programming language of the computer program.
Protection of IP Rights
Copyright is the most significant intellectual property right in relation to software. Generally, a “computer program” is protected by copyright as a literary work. As we have seen above, the term computer program will include the source or object code, amongst other things.
No formalities need to be observed in the UK for a work to receive copyright protection; protection automatically applies to all works recorded in any form provided that they meet certain requirements. The most relevant requirement here being that it must be original literary work. In the most general sense, originality means that the author must have created the work through his own skill, judgment and individual effort and that it is not copied from other works.
Determining Who Owns IP Rights
Software is most commonly developed by employees of a company either tasked to develop something for their customer, or an in-house developer creating software for that company’s own purposes. A common question arises in this circumstance around whether the copyright is owned by the employee or the employer.
Copyright – on a general level the Copyright, Designs and Patents Act 1988 (CDPA) provides that the author (or creator) of a work is the first owner of copyright in it but this is not the case for employee authors. In these cases, subject to any agreement to the contrary, copyright vests in the employer.
Databases – under the Copyright and Rights in Databases Regulations 1997 a database is defined as “a collection of independent works, data or other materials which are arranged in a systematic way and are individually accessible by electronic or other means”. The maker of a database is the first owner of database right in it and an employer is regarded as the maker of a database made by an employee in the course of employment, subject to any agreement to the contrary
Safeguarding Software and other Copyright Works
We have seen above that copyright is not registerable in the same way as a patent might be, however businesses can take the following practical steps to identify and safeguard copyright works:
- Identify all materials that are likely to have copyright protection.
- Ensure that the company is the owner of the work. In each case, this involves identifying the authors of the relevant work and ensuring that ownership and licensing arrangements are clear. If any of the materials have been commissioned from third parties (such as outside contractors), ensure that appropriate copyright assignments and waivers of moral rights were included in the written agreements commissioning the materials.
- Keep proper records of the results of the steps set out in the first and second points above. Authors should sign and date their works and, where relevant to the term of copyright, the date of first marketing of articles should be recorded. These records can then be used as the basis for any infringement action. Actions can fail if the claimant cannot prove subsistence of copyright or ownership. Records may also be invaluable in defending any claim for copyright infringement. Evidence that a work was created before the work alleged to be infringed is a powerful defence.
- Apply a copyright notice in accordance with the Universal Copyright Convention, that is, i.e. “Copyright © [NAME OF COPYRIGHT OWNER] [YEAR OF PUBLICATION]”. Although this is not necessary as a matter of law to gain protection, it is a useful notice and warning to anyone using the work that copyright exists and that action may be taken if the work is copied. Ensure that, when software comes to be sold, licenced or otherwise used by someone other than the developer, the contract is clear on the rights that the customer has to the software.
Should you wish to discuss anything covered in this article, please contact the Corporate and Commercial Team.