The legal protection of software

New technologies have substantially changed the way companies operate. In fact, software is currently an asset for many companies. Consequently, it is logical to think that the need to develop measures for the legal protection of software has arisen. But what can be done to protect such assets?

Defining the term “software”.

Before going over the legal protection of this asset, we need to define the term “software” from a legal point of view. Under article 96 of the TRLPI (Revised Text of the Intellectual Property Law), software is “any sequence of instructions or indications intended to be used (…) in a computer system to perform a function or task to obtain a specific result (…)”. Therefore, the legal interpretation is not very different from the general concept of software, which is based on the writing of machine-readable code.

Nevertheless, it should be highlighted that this definition opens up the possibility of protecting the software’s source code. Indeed, the code indicates the functions to be performed and, therefore, the basis of the software or program itself. Thus, the software cannot exist without the source code, although the code can bring to life other software different from the original.

Up to this point, it appears to be a straightforward process to protect software legally, but in fact, complications start to arise here. Remember that source code is intangible, but it is a specific asset.

Achieving the legal protection of the software.

There are several ways to achieve legal protection of software. Firstly, one could use copyright protection. According to Article 10.1 of the TRLPI, this type of program has an intellectual nature and can therefore be protected.

However, a negative aspect is considered to exist in this case. To adequately protect the originality of the source code, it is necessary to register it in the Intellectual Property Register, proving the date on which the work was delivered. The problem is that this register is public so that the software code will be disclosed, and, as expected, it is not the most advisable scenario to avoid software plagiarism. To fully understand the ins and outs of the issue, you should find a lawyer specialising in data protection.

Alternatively, you can use the legal protection of the software through an escrow agreement. Initially, this type of contract was to make the source code available to an escrow agent (e.g., a notary) in case of a negative eventuality with the developer. The licence owner would then be able to access the code and make the necessary changes. Courts have now ruled that this system allows for protecting rights related to software. In any case, consult an IT lawyer to get the best possible protection.

To conclude, there is also the legal protection of software through Trade Secrets. This system is intended to prevent the disclosure of sensitive data without authorising the organisation or company sponsoring the source code configuration. Thus, all persons involved in the development of the programme must undertake not to disclose any unapproved data to third parties. Furthermore, it disqualifies them from any plagiarism of the parts that make up the software. This system is handy whilst the programme is being developed.

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