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Protection for Software Creators

With software creation practically a 21st century cottage industry for computer savvy individuals, we felt a discussion of legal protections for intellectual property seems in order. After all, software piracy concerns all of us, software developers and consumers.

Fortunately, the law protects software developers in a variety of ways. In the paragraphs below, we will discuss three ways in which the law considers software an Intellectual Property (IP) that confers certain rights upon the owners.

There are basically three asset rights in software IP with respect to the technology that created the program: copyrights, patents, and trade secrets. In addition, software creators also have rights in the trademark they have chosen to represent their product. We limit our discussion here to the first three asset rights.

Copyright

Protection of the copyright extends to the specific form in which the IP exists. For software, this means the source code, object code, and any distinctive parts of the user interface. The copyright owner of a software program is the only person who has the right to copy, modify, create derivatives and distribute copies to the public, whether that is through a licensed product, sale or any other means. Copyright protects against someone copying the source code, for example, into another programming language. Anyone copying, modifying, making derivatives from or distributing copies of the program to others infringes on the copyright owner's rights and risks a claim for damages and fines.

Copyright does not afford any protection for the ideas and concepts behind the program. Trade secrets and patents protect those assets.

How do you apply for copyright protection?  Copyright attaches to the product at its creation. The owner does not need to file any particular forms to ask for protection or register the work. Copyright protection endures for the author's life plus 50 years. The law considers a software program created by an employee for his employer as a "work for hire". In this instance, the copyright protection lasts for 75 years.

Are there any defenses to copyright infringement?  Yes. A defense exists if the accused can show that the program was independently developed. This is not an easy defense to make considering the thousands of lines of source code that go into making a program.

Patents

A patent is a legally recognized monopoly on the right to make, use, and sell a registered invention. To get a patent, the owner must apply to the US Patent and Trademark Office, describing the invention and showing that the invention is new, useful and what the law calls "non-obvious". In other words, the product must mean more than the next logical step in the technology's development. If successful, the patent rights conferred upon the owner extend for 20 years.

A patent protects the ideas, systems, methods, algorithms, and functions of a software product. This can mean everything from the user-interface to the menu setup to the operating system and compiling techniques.

As in copyright, the patent is exclusive to the owner. The law considers the making, using or selling of the patented product without permission an infringement. Harsh penalties apply for patent infringement and can carry treble damages. Unlike copyright, once the US Patent Office grants a patent, the law considers a similar product -- even one independently discovered -- an infringement.

Trade Secrets

Unlike copyright and patents, trade secrets protect the formula, pattern, compound, instrument, process, tool or mechanism of a product that is not generally known to anyone other than the owner. The owner must keep the information secret. Trade secrets give an economic advantage to the owner simply because they are secret.

Trade secrets can remain protected forever, as long as the owner keeps them a secret and no one else independently discovers or crafts it.

In software, trade secrets can mean many of the ideas, concepts and code. Trade secrets do not attach to parts of software that are easily available by legitimate methods or independent discovery.

Unlike patents and copyright, thieves steal trade secrets; trade secrets are not infringed.

This article does not constitute legal advice. For specific questions on how copyright, patent, and trade mark laws apply to your product, always consult legal counsel.