Law is a living science that must always keep up with current circumstances and, in line with the times, regulate legal frameworks and codes of conduct.
Thus, just a few decades ago, we could not even imagine the technology that is available to us today, let alone devise legal solutions that effectively keep up with the modern era.
Anyway, today the IT sphere is the fastest growing and most widespread industry that continues to expand every day.
Naturally, this leads us to new needs that the law must regulate. One of the most important questions that arises is the issue of software protection.
Let’s start from the beginning and define the concept of software.
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- Software is a computer program, that is a collection of programs that are designed to instruct a computer on how to perform specific tasks.
Now let’s discuss the concept of software protection and what the Law of the Republic of Serbia states.
Given that we are talking about a specific field of law, there is no single answer to the question of software protection. Instead, there are several ways to protect software, and the most effective approach would be a combination of multiple methods. We will mention some of them:
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- Deposition of copyrighted work.
- Trademark protection,
- Patenting software,
- Non-Disclosure Agreement (NDA).
Copyrighted work
According to the Law on Copyright and Related Rights, a copyrighted work is an original intellectual creation of an author expressed in a specific form.
For a work to be considered copyrighted, factors such as artistic, scientific, or other value, purpose, size, content, or manner of expression are not relevant, nor is the permissibility of making its content publicly available.
Let us remind, it is important that the work is:
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- Original,
- Intellectual,
- Expressed in a specific form, i.e., materialized.
A copyrighted work is various types of work when it represents an intellectual creation. However, in this text, we will focus on software and the available methods of protecting it.
According to the law, the following are specifically considered as copyrighted works:
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- Written works, especially books, brochures, translations, computer programs with accompanying technical and user documentation in any form of expression, including preparatory material for their creation, and others.
So, the law recognizes software that is computer programs, as copyrighted works and provides specific protection under copyright law.
It is important to note that the law protects copyright, which does not exist at the moment, that is original. The law does not protect the idea itself, but rather the actual expression or manifestation of the author’s thoughts or ideas.
Therefore, if someone develops new software based on an idea that already exists, that will not be a violation of copyright work, however, if the code itself, that is the form of expression of the software is being copied we come to violation of copyright.
When is a copyrighted work considered published?
For a copyrighted work to be considered published, it must be publicly announced from the author or a person authorized by the author.
A copyrighted work is considered to have been communicated to the public if it has been made available to a larger number of individuals who are not connected by family or other personal relationships.
When is the copyright work created?
The author enjoys moral and economic rights from the moment the work is created. Therefore, it is not necessary to deposit one’s work to have it protected by law. By the mere creation of the work, it is automatically protected by both moral and economic rights.
However, depositing the copyrighted work with the Intellectual Property Office can serve as evidence that the depositor is the author of the work. In the event of a legal dispute, other evidence can also be presented, so it cannot be said that the act of depositing the work is irrefutable proof of “ownership.” Nonetheless, it does constitute strong evidence in court.
Who is the subject of copyright work?
The author of a work can only be a natural person who has created the copyrighted work. The author is the holder of the copyright.
When it comes to software, it is common for multiple individuals to collaborate and develop a single program. The law recognizes all physical persons who, through joint creative work with other individuals, have contributed to the creation of the work as co-authors.
Furthermore, the law specifically defines that if the co-authored work is a computer program, the copyright in such a computer program belongs to all the co-authors.
Copyright created within employment relationships
If an employee creates a work during their employment while performing their duties, the employer is authorized to publish the work and becomes the exclusive holder of the economic rights to exploit it within their business activities within a period of five years from the completion of the work.
However, the law goes further and specifically states that if the copyrighted work is a computer program, the employer is the permanent holder of all exclusive economic rights unless otherwise specified by contract.
Therefore, if software is created during employment, the employer will be the exclusive holder of the economic rights.
However, what if an employee creates copyrighted work during their employment but in their free time? What if they have used the employer’s equipment? These questions must be carefully regulated in the company’s work regulations and employment contract to avoid potential issues later.
Contract for commissioned work of copyright
An agreement for the commissioned work of a copyrighted work, including software, can be made between the client and the creator. This is particularly common today with the increasing involvement of freelancers.
However, the question of ownership of the economic rights arising from the creation of the software depends on the agreement between the parties. According to the law, unless otherwise specified, the economic rights belong to the client.
Since this matter is delicate and can have significant implications, it is advisable to consult with a legal professional when entering into such agreements to ensure that the rights and obligations of both parties are clearly defined.
Patent of the software
A special law defines the legal protection of inventions, known as the Patent Law. A patent is granted for an invention in any technical field that is new, involves an inventive step, and is industrially applicable.
However, the Patent Law specifically states that computer programs are not considered inventions. This leads to the conclusion that software itself cannot be patented. However, software can produce a technical effect that is industrially applicable.
Inventions that are implemented using software on computers can be patented in Europe. For example, the Intellectual Property Office of the Republic of Serbia cites an improved data management system as an example of something that can be patented in Europe.
Currently, there are few examples where the technical application of software, specifically situations where software controls specific hardware and leads to industrial application, can be patented.
Unlike copyright, patents are time-limited to 20 years and require a lengthy and expensive administrative process. However, there are indications and developments on the global and European stage that the situation may change, and there may be procedures established to protect software itself as a distinct invention.
Protection of Trademarks
Software itself logically cannot protect a trademark, but it can certainly be a means of protecting your business.
Trademark protection is not limited to IT companies but is recommended for any business activity. If a company develops its own product, in this case, software development, it will be identifiable by its logo or trademark.
If you fail to register your trademark, there is a possibility that your competition could completely take over your business.
To illustrate the importance of trademark protection, imagine developing an application for real estate advertising without protecting your trademark. After some time, your competition develops a nearly identical application with a similar trademark, which misleads all your users who rely on your work.
This situation can be prevented if your trademark is registered.
Business Secrets – NDA
Although at first glance, a company focuses on protection from third parties, from practice, we can say that protection “from within” is equally important as protection from external “thieves”.
If a company enters into a Non-Disclosure Agreement (NDA) with its employees, it will be protected from the “leakage of information” to unauthorized individuals.
An NDA can also be concluded with consultants or other individuals who possess knowledge (know-how) about the software.
We have presented some of the basic options for protecting your software. If you are considering the most suitable option for legal protection of your software, we advise you to consult with a lawyer specialized in software legal protection.
