Software: copyleft?

Written by Claire Denoual et Elisabeth Guissart - Avocats à la Cour - /c law

Published on 15.01.2019 - Paperjam

What is the legal framework applicable to software? What protection does it have? Who is the owner, and what is the extent of his rights? Here are many questions on which it is not useless to return.

Contrary to popular belief, software is not naturally protected by a patent, but by copyright. This protection arises from the mere creation of the software, without any prior filing formality (contrary to patents) having to be accomplished. However, copyright protection is not unconditional: the software must be "original". In practice, this means that it must be the result of a "creative effort", going beyond the simple implementation of an automatic and binding logic.

But what does copyright protect?

Copyright protects the form, not the substance, and therefore not the ideas, the methods of operation or the concepts. Algorithms, computer language, software functionalities are not protected as such by copyright. On the other hand, their concrete expression can benefit from protection, i.e. the source code, the object code, the computer graphics (i.e. the "look and feel"), or the preparatory design material of the software.

What rights does the owner have?

According to the logic of intellectual property rights, the owner of the copyright has an exclusive right to the software. In doing so, the copyright allows the owner to authorize (and therefore to prohibit) the reproduction of the software (i.e., the (downloading) display and execution of the software), the distribution of the software, or its modification. The owner has, moreover, the right to be mentioned as such during any use of the software. These rights can of course be transferred in whole or in part by their author.

However, given the nature of the software and its purpose, certain exceptions have been introduced to the right of the owner to prohibit any operation on or with the software. Thus, there is no need for authorization to make a backup copy of the software, to perform any act necessary for the use of the software in accordance with its purpose, or to correct errors, unless the owner has reserved this right by contract (maintenance).

Any other use without prior authorization from the copyright holder constitutes an act of infringement and engages the responsibility of its author. Thus, for example, the fact that an employee downloads an illegal copy of a software on his professional computer, without acquiring a license of the software, exposes his employer to legal proceedings. Similarly, exceeding the limits of the acquired license by not respecting the number of users constitutes an act of infringement. Hence the importance of having a strict internal IT charter in order to control the use of IT tools by its employees...

But who, in practice, owns the copyright on software?

When a company orders the development of a software from an IT company, unless there is a clause to the contrary, it is the latter that is and remains the owner of the copyright on the software, despite the payment of the price. This means that the IT company will be able to reuse its developments and the source code with other customers. It also implies that the customer will not be able to entrust further developments to another company. All rights not expressly assigned remain with the author. It is therefore essential to regulate from the outset the fate of the rights, and this with precision and exhaustiveness (assigned rights, particular uses, territories, duration, etc.).

What about software created by an employee?

If the development of the software falls within the scope of the employee's duties, the law establishes a presumption of automatic transfer of (economic) rights to the employer. It is therefore the employer who has the exclusive right to use the software.

So-called "copyleft" or open-source software?

Sometimes, a false good idea. Vigilance is required when integrating, by the external provider, as well as by its own employees, lines of code of so-called free software within a software to be developed. Indeed, "copyleft" does not mean deregulated. Having all the power on his software, it is possible that its author has imposed conditions to the reuse of his source code through licenses called "open sources". The most frequent condition being the obligation to distribute and make public the source code of the "derived" software. However, this is not always the wish of the employer or the client. Hence the importance, here again, of a good contract...