Indice dei contenuti
- Legal protection of software
- Source code and object code
- Author’s rights and time limits
- The principle of expression and exclusions
- Software usage rights and licenses
- Protection and violation of intellectual property
- Open-source licenses and free software
Software intellectual property is a crucial topic for developers, companies, and legal professionals. Software, considered a work of intellectual creation, enjoys legal protection, but software protection varies depending on national and international laws.
This article on software and intellectual property will examine the legal framework of software intellectual property, focusing on copyright law, software patentability, and the rights of authors and companies.
Legal protection of software
Software is an intangible asset that allows a computer to perform specific functions. In the Italian legal system, software protection is regulated by copyright law (Law No. 633 of 1941), which equates computer programs with works of intellectual creation that have a creative nature. Protection is granted if the software is original compared to pre-existing programs.
Source code and object code
A central element of software intellectual property is the distinction between source code and object code. Source code is a set of instructions written in a programming language that determines the operation of a program.
To be executed, it must be translated into object code, which is readable by the machine. According to copyright law, both are protected by law as literary works.
It is important to highlight the relevance of source code and object code in software, which, according to the law, are equivalent to literary works.
Source code consists of instructions written in a specific programming language that determine the operation of a program. However, for it to be executed by a computer, the source code must first be converted into another form, known as object code.
Below is an analysis of the relevant legislation in the Italian legal system.
Author’s rights and time limits
Article 1, paragraph 1 of copyright law states: “Creative intellectual works belonging to literature, music, visual arts, architecture, theater, and cinema are protected under this law, regardless of their mode or form of expression.”
Paragraph 2 (introduced by Legislative Decree 518/1992 and later amended by Legislative Decree No. 169/1999) specifies: “Computer programs are also protected as literary works under the Berne Convention for the Protection of Literary and Artistic Works, ratified and enforced by Law No. 399 of June 20, 1978, as well as databases that, through the selection or arrangement of material, constitute an intellectual creation of the author.”
Protection arises automatically upon the creation of the work, without any formalities required from the author. This protection has a time limit: it lasts for the author’s lifetime and extends for 70 years after their death. In the case of multiple authors, the reference point is the death of the last surviving author.
Intellectual property law distinguishes between moral rights (such as the right to authorship, integrity, and publication of the work), which are perpetual, inalienable, and non-renounceable, and economic rights (such as reproduction, performance, dissemination, and distribution of the work), which the rights holder may transfer or license.
The principle of expression and exclusions
Article 2 of copyright law protects the expression of software but not the ideas behind the program. This principle was reaffirmed by the European Court of Justice (C-406/10, 2012), which excluded functionalities, programming languages, and file formats from protection.
Furthermore, Article 2, paragraph 1, No. 8 specifies that protection includes “computer programs, regardless of the form in which they are expressed, as long as they are original as a result of the author’s intellectual creation. However, the law does not protect the ideas and principles underlying any element of a program, including those forming its interfaces. The term ‘program’ also includes preparatory material for its design.”
Thus, Article 2 reiterates a general principle of copyright law: protection is granted to the expression of ideas, not the ideas themselves.
In this regard, the judgment of May 2, 2012, in case C-406/10 of the Court of Justice of the European Union (hereinafter, “CJEU”) addressed the issue of software protection as a work of intellectual creation. The ruling clarified that protection extends to the expression of a computer program, specifically its source code, but not to the underlying ideas and principles, including those related to the interface. Consequently, software functionalities, programming languages, and file formats are not covered by copyright protection.
Software usage rights and licenses
The author’s rights can be granted through licenses. The owner can define usage rights, determining whether the software is proprietary or open source. Article 12-bis of copyright law states:
“Unless otherwise agreed, the employer holds the exclusive right to the economic utilization of the computer program or database created by an employee in the course of their duties or under the employer’s instructions.”
The legislative provision, introduced with the advent of new technologies, constitutes an exception to the general principle whereby the economic exploitation rights of intellectual works vest in the author upon creation, unless otherwise agreed by the parties. The article under discussion explicitly pertains to employment relationships but is considered applicable to all contractual or collaborative arrangements.
Intellectual property rights, particularly those concerning economic agreements, are governed by the respective contracts and licenses, with their terms left to the discretion of private autonomy under the law. In 2018, the Paris Court of Appeal referred a preliminary question to the CJEU, seeking clarification on whether a breach of a software license agreement constitutes a copyright infringement or falls within the scope of contractual liability.
The Court of Justice of the European Union (CJEU), in its judgment of December 18, 2019, in case C-666/18, ruled that such conduct constitutes an “infringement of intellectual property rights.” Consequently, the software owner is entitled to the protections established under EU Directive 2004/48 on the enforcement of intellectual property rights, regardless of the liability regime applicable under national law. This decision therefore strengthens the protection of authors within the European legal framework.
In Italy, inventions from any technical field that are new, involve an inventive step, and are capable of industrial application can be protected by filing a patent application with the Italian Patent and Trademark Office (UBM). The protection lasts for 20 years, during which the patent holder has the exclusive right to prevent third parties from exploiting the invention.
Italy is a signatory to the European Patent Convention (EPC), whose Article 52 states that computer programs, as such, do not qualify as patentable inventions—a principle also reflected in Article 45 of the Italian Industrial Property Code (Legislative Decree No. 30/2005).
However, more recently, the European Union Intellectual Property Office (EUIPO) has ruled that a computer program may be patentable if it produces a further technical effect, meaning it goes beyond the mere physical interaction with hardware and provides a novel and inventive technical solution to a technical problem.
This jurisprudential and practical development, which has significantly impacted the technology sector, warrants further examination, though it is beyond the scope of this discussion.
Protection and violation of intellectual property
To protect software intellectual property, developers and companies can register their rights, implement technical measures to protect source code, or use restrictive licenses. However, intellectual property protection is not limited to legal registration—it also includes cyber security strategies to prevent code theft and unauthorized software use.
Common intellectual property violations include:
- Software piracy
Unauthorized use or distribution of proprietary software. - Unauthorized reverse engineering
Decompilation of code to understand its function without a license. - License violations
Using software outside the agreed-upon terms.
The legal consequences of violations vary depending on local regulations. The Court of Justice of the European Union (CJEU), in case C-666/18 (2019), ruled that breaching a software license agreement constitutes an infringement of intellectual property rights, thereby providing stronger protection for rights holders. Penalties may include fines, compensation for damages, and, in severe cases, criminal sanctions.
An effective approach to combating violations is the implementation of software protection tools, such as license activation keys, code obfuscation, and monitoring systems to detect unauthorized use. Additionally, awareness campaigns and collaboration with intellectual property protection organizations can help reduce piracy and misuse of usage rights.
Software patentability
Software patentability is a complex topic that varies across jurisdictions. In the United States, software can be patented if it presents a significant technical innovation and is not merely a mathematical abstraction or a generic idea. In Europe, software must be part of a broader technical invention to be patentable, meaning it must solve a technical problem in an innovative way.
The European Patent Office (EPO) states that software alone is not patentable unless it contributes to a technical invention, such as improving system efficiency or optimizing hardware performance.
Example
An advanced compression algorithm that enhances device performance could be eligible for a patent.
In Italy and the European Union, patent protection is less common than in the United States, as copyright protection is often preferred. However, companies developing innovative software can seek a patent if they demonstrate that their software is integral to a technical invention.
A key consideration is the distinction between patents and trade secrets. Some companies choose not to patent software to avoid disclosing technical details, opting instead to protect their code through security measures and confidentiality agreements.
Finally, software patenting involves high costs, a complex process, and lengthy approval times. As a result, companies must carefully assess whether to pursue software patents or rely on copyright and other protection strategies.
Open-source licenses and free software
Open-source software is an alternative to proprietary software protection and is based on source code sharing. Open-source licenses allow anyone to use, modify, and distribute software, provided they comply with the chosen license terms.
Common open-source licenses include the GPL (General Public License), that requires derivative software to be released under the same open-source terms. And the MIT License, that allows flexible software usage without requiring modifications to be open-source. The main advantage of open-source licenses is the ability to create collaborative software, improving security and innovation through community review.
Conclusion
Software intellectual property is a complex subject involving copyright, licensing, and patents. Understanding software protection is essential for developers and companies looking to protect their intellectual property and manage their rights effectively.
Questions and answers
- How is software protected by law?
Software is protected by copyright as a literary work, safeguarding its expression but not the underlying ideas. - What is the difference between source code and object code?
Source code is readable by developers, while object code is its compiled version executable by the machine. - Is software protection automatic?
Yes, the creation of the work automatically grants copyright without requiring registration. - Can software be patented?
Software patentability varies by country. In Europe, it must be part of a technical invention. - What rights does an employee have when creating software?
If developed for work, the exclusive right of exploitation belongs to the employer unless otherwise agreed. - Are the ideas behind software protected?
No, only their specific expression, such as source code and object code, are protected. - How to protect source code?
By using software licenses, code obfuscation tools, and intellectual property registration. - What are the time limits for protection?
Software is protected by copyright for the author’s lifetime plus 70 years. - What happens in case of software license violations?
The ECJ ruled that it constitutes an intellectual property infringement, enforceable by law. - Are open-source licenses legally protected?
Yes, they establish usage rights and conditions for software distribution.
