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Intellectual property protection in a digitized world ​

💰 Physical vs Intellectual Property ​

Both physical and intellectual property have absolute rights. That means that the right can be upheld against anyone, as opposed to a personal right which rises out of a contract between two people.

📜 Software Patents ​

European Patents are not granted for software as such. [^1] A combination between hardware and software that complies with the rules for patents (new, inventive step, susceptible industrial application) could be patented.

Copyright rules are usually old. There are several EU directives and regulations on copyright. Most relevant for software protection: [^2]

Authorizes:

  • reproduction of a program
  • any alteration of a computer program.
  • any form of distribution of the program.

Copyright

  • No registration required for copyright protection.
  • Term of protection: 70 years after the death of the author.
  • Transfer of copyright requires deed (=signed document).
  • Exclusive license requires deed.
  • Non exclusive license does not require deed.
  • Employer has all economic rights on programs created by an employee.
    • freelancer ≠ employee (if you are an employer remember to arrange a deed)

First Sale Doctrine

After the first copy of a program is sold. The right holder cannot control the resale of that program. this allows for example video rentals to operate (back in the day.)

Object of protection (article 1) [^2]:

  • A computer program (including preparatory design material) shall be protected if it is original in the sense that it is the author's own intellectual creation.
  • Underlying ideas and principles are not protected.

Other Relevant Parts of [^2]:

  • Exceptions to the restricted acts (article 5)
  • Decompilation (article 6)
  • Special measures of protection (article 7)

Practical Cases ​

SAS Institute Inc. vs World Programming Ltd

  • Neither the functionality of a computer program nor the programming language and the format of data files used in a computer program are protected by copyright.
  • Expression of a computer program, such as source code and the object code (=compiled program) can be protected.

First sale doctrine ​

UsedSoft vs Oracle

  • Application of the first sale doctrine on software.
  • Conditions:
    • License for an unlimited period.
    • remuneration corresponding to the economic value of the copy.
    • first acquirer has deleted his copy.
    • it's not allowed to resell excess licenses

[^1]: European Patent Convention (EPC) article 52 [^2]: Directive 2009/24/EC