Protect your software

Software or computer programs are written in a particular computer language (a human readable code), which is called source code. If your source code is original, it can be protected under copyright. Copyright protection is not only valid for the code itself, but also for interfaces, flowcharts, and aesthetic elements such as icons, etc.

However, keep in mind that copyright only protects the literal text, not the technology described by the code. This implies that others can produce the same digital product or service, as long as they come up with their own code.

Copyright protection does not require any registration. You obtain protection automatically as of the date you created the software. Without registration it can be difficult to prove the official creation date of your software development. There are different ways you can prove the creation date of your software: e.g. you can record the source code in an i-DEPOT or you can use online version control systems (this keeps track of who created what and when). A copyright has a lifespan of 70 years after the death of the author.

You can protect (certain aspects of) your software as a trade secret. This is particularly useful in the early steps of software development. Trade secrets apply only when the information is commercially valuable because it is secret, is known only to a limited group of persons, and reasonable steps are being taken by the rightful holder of the information to keep it secret. Keeping the software secret can be done in different ways: the software can be compiled, kept "in the cloud" or in a "black box". This way you can use the software without exposing the code. Another way to secure your source code is the use of Web-based/Web-hosted software. In this method of cloud computing the software is stored on a server instead of on a PC. This makes securing your software easier.

You can also protect your software by means of a patent , but only if the computer program produces a ‘further technical effect’. A ‘further technical effect’ is a technical effect going beyond the ‘normal’ physical interactions between the program (software) and the computer (hardware) on which it is run. This is called a ‘computer implemented invention’. You can file for patent protection if your software is considered a new and inventive technical solution, and the software controls the technical features of a computer, a machine or an apparatus. Some examples of software that can be patented include AI in speech recognition devices, or software that controls a vehicle’s brakes (such as ABS). Computer programs ‘as such’ do not involve a ‘further technical effect’ and are not regarded patentable inventions. This includes software applying existing technology, for example for presenting data.

When your software is protected, you can stop others from using it without your permission and you can also commercialise it. Furthermore, each specific protection type has its own benefits:

• Copyright enables you to decide on the destination of your software, and to prohibit or authorise reproduction, adaptation, and so on. Copyright protection also allows you to claim authorship of the software development. This way you can license-out your software and make deals with interesting partners.
  Note that software can also be ‘commercialised’ via an open source license. Open source software is software that can be freely used by everyone (under certain requirements), but cannot be used for any further commercial activities. There are different types of open source licenses, and they differ from each other in what they allow you to do in terms of adaptation and redistribution. The more permissive ones give you a wide range of possibilities, while the less permissive ones lock you into an open source logic by forcing you to distribute your contributions under an open source license.
• Trade secrets offer you the opportunity to negotiate with (potential) partners about your know-how. But keep in mind that you have to take measures to keep this information secret, so use a non-disclosure agreement (NDA) or a confidentiality agreement when you negotiate with (potential) partners.
• Your patented software cannot be used by your competitors without your permission. If your software is closely related to or even associated with your commercial products or services, you can make business agreements with your customers or suppliers to use/license your software when they buy your products or services.

• Copyright: Copyright will automatically protect the original aspects of the software. In some countries (Canada, China, Russia, US) registration of software copyright is highly recommended. Copyright grants automatic protection in a lot of countries internationally based on their membership to an international convention on copyright protection (this is the Berne Convention. It has 179 members). So in practice you get almost full international protection. Copyright protection in countries that are not a member to this convention depends on their national laws and national legal requirements (since copyright laws remain linked to a specific country).
• Trade Secret: Trade secrets grant international protection in theory, but in practice protection may vary per country.
• Patent: You can file a national, European or international patent application, depending on your market objectives. Be aware that some countries are more flexible in protecting software patents than others.

The period of protection depends on the system of protection you chose:

• Copyright protection has a lifespan of 70 years after the death of the author. For more information see the smart guide on software.
• Trade Secrets protection lasts until the information is legally disclosed by you or by someone else, so in theory protection is not limited in time. For more information see the smart guide on trade secrets.
• Patent protection can last a maximum of 20 years (from the filing date of the application). For more information see the smart guide on patents.

The price of protection depends on the system of protection you chose:

• Copyright protection on software is free as no registration is required. However, if you want proof of the date of your creation, there might be costs involved. For example recording an i-DEPOT with BOIP costs EUR 37.
• Trade secrecy is free, but depending on the measures that are used to actively keep some software aspects secret, i-DEPOT for example, you may have to pay a minimal fee.
• For patent filings you must pay a filing fee, an international search fee, and in some cases a granting fee, renewal fees and translation fees after the grant. Depending on the procedure (national, European or international), the costs can vary. When you consult a patent attorney, extra fees have to be calculated based on their costs.

You can take action if your protected software is used by a third party without your permission. What action you can take depends on the system of protection you chose:

• For more information about what actions you can take if someone infringes your software protected by copyright: see the smart guide on copyright.
• For more information about what actions you can take if someone infringes your software protected by trade secrets: see the smart guide on trade secrets.
• For more information about what actions you can take if someone infringes your software protected by patents: see the smart guide on patents.

There are different ways to check if the software you want to use is protected:

• In order to check if computer software protected by copyright is already on the market, you must monitor your business environment and competitors. Very often a copyright sign “©” will be added to inform the public that copyright protection is claimed. If the software is already protected by copyright, you cannot use it without the authorisation of the author. If you develop your own original software to obtain the same result, this newly created software can be used and can get its own copyright protection.
• Trade secrets are not publicly available and so cannot be checked. This means that when you write similar software, without any knowledge of this trade secret, this software is not infringing the trade secret and cannot be stopped by the owner of the trade secret.
• A patent protection check can be done on available (free) patent databases such as https://worldwide.espacenet.com. You can contact your national patent office for more information and help with your research. If the software already exists, and is protected by a patent, you cannot use this software without the permission of the owner of the patent.

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