Intellectual property law in Software

Introduction

The software consists of formal instructions and code written by a programmer. Creating commercial software are most profitable nowadays as millions of individuals and businesses rely on many software products. Hence, they are in a threat of coping, misusing by unauthorized persons. So, it’s difficult to get to develop and to protect good health in the software industry. intellectual property law plays a vast role to protect such inventions, literary and artistic works and symbols, names, and images. It helps creators or owners to get better economic value for their investment and to encourage them to create more innovations.

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he is the author.

Accordingly, we can identify four types of basic intellectual property rights that help to protect and develop the software industry. They are Copyrights, Patents, Trademarks, and Trade Secrets.

Copyrights

Copyright relates to literary and artistic creations, such as books, music, paintings and sculptures, films, and technology-based works (such as computer programs and databases and etc). Some are saying copyright as an author’s rights. Considering this with the software industry, all creative and original software is protected by copyright. Also, it’s history as well as frequently used to protect software including code, user guides, and graphical elements (icons…etc.). When someone having copyright for a software others cannot make its copy or theft the product. If they need a copy of the software they need to get owners' permission to do that.

Considering the copyright issues in cyberspace, WIPO(World Intellectual Property Organization) plays a vast role to shape up the new standards to copyrights in cyberspace. As a result of the WIPO Copyright Treaty (WTC) and WIPO Performances and Phonograms Treaty (WPPT) which are called ‘’Internet Treaties” were introduced and they are considered as international norms to prevent unauthorized access and uses of creative works on the cyberspace.

Patents

A patent is an exclusive Intellectual Property Right. It’s a kind of reward to encourage creative inventors. To get the patent for a creation that has to show “novelty”. If part of the creation is innovative another part of the creation is not innovative then such creation cannot get patent. All steps of the creation have to show the novelty. Also, it has to be practical. Considering the software, a patent provides potential ownership for new and inventive technical effects implemented by the programmer.

However, patenting software is still debatable even at the international level due to complex issues in implementation. The main reason is patent protection law applicable territorial basis/ country-by-country basis. The law of patent effective only within its territory.

Copyright and Patent in Software.

Many programmers prefer to get a copyright for their source code or object code because it has a very simple procedure unlike in patent. Once the work is created in a fixed or tangible form of expression copyright becomes effective. To get a patent, inventors have to get an expert assistant to fulfill formal and substantive requirements. Not only that but also, implementing copyright protection in international level also can be considered automatic due to 151 countries has become the party to the Bern Convention for the Protection of Literary and Artistic Work.

Not only that but also, copyright owners enjoy a long period of protection for their creation. Some countries provide lifetime plus 50 or 70 years after death. But, in general, a patent holder can take it only for twenty years from the filing date of application.

However, copyright protection does not cover the idea, concept, procedure, algorithm, a method of operation or mathematical concepts which consist of high economic value. It protects only the expression of the idea ( literal expression)not the idea itself. For an instance, copyright helps to prevent copying source code or part of it. But it cannot protect coping idea or functionality of the software.

Design Rights

Design Rights will help to protect the graphical user interface of the software. It can be consist of two or three-dimensional features such as patterns, lines, or color. Design rights will help to protect the company brand. The owner of design has the right to prevent others from making, selling, or importing it for commercial purposes.

Design rights are granted for a limited period of time. Generally, it’s 10 years, but it may differ from country to country. It can consist of successive and renewable periods.

Trademark

A trademark can be one or a combination of words letters or numbers. It reflects the identification of the product or services of the company. Considering the software industry, Trademark will help to protect the name of the software company, software products, brands as well as taglines.

Trademark consist of renewal requirement. Generally, if the trademark owner holds using it for 3 or more years, then it’s considered as “abandonment”. So, it may be a reason for missing the trademark.

Trade Secret

Trade Secret will help to protect the creation of unlikely copyright and patent. Because copyright and patent have become public after some period. But trade secret can be protected as long as keep them as a secret.

Considering it with software, a software developer must maintain the confidentiality of the source code. For example; having a confidentiality agreement, limit access to source code, These steps may help to prevent unauthorized access to source code and algorithms of software. Not sure we can keep secret when we are dealing with developers but we can get legal protection example: signing an NDA

Conclusion

Accordingly, any software can be protected under the intellectual property law as it’s creation and innovation by intellectuals. Copyrighting software and patenting software are two different things. Copyright gives protection for a creative idea. Not for the idea itself. The patent protects the whole process of the idea itself. Other than that Trademark, design rights, and trade secrets also play a vast role to protect intellectual property rights in the software industry.