Understand software protection

Software is protected by copyright. This protection was firstly adopted in USA by the “Copyright Act” of 1976 and European legislation has adopted the same principle. In Switzerland, the Federal Act of 9 October 1992 on copyright and related rights governs this matter. Software inventions also benefits, under certain conditions, protection by the patent law.

Copyright protects original works of authorship, including, literary, scientific, musical, artistic, architectural and certain other intellectual works. Law on copyright states that software is also enjoy such protection. Software author (or authors) is the person who created it. Copyrights belong in principle to the author (or authors) of the software. However, the existence of certain circumstances or contracts (e.g. employment contract or editing) involves the transfer of copyright to another person (e.g. employer or publisher). 

Copyright consists of a number of rights that the holder may benefit from and prevent others from exercising such rights. These include notably the following rights:

  • Use
  • Make copies
  • Modify, adapt, improve, integrate into other software
  • Disclose
  • Distribute copies, release on Web, or grant licenses

Protection by copyright is acquired automatically when the software is created without further formality. Mention © followed by the year of first publication is not necessary for the acquisition of copyright, but it is useful in preventing third parties to exercise author’s rights.

Source, binary codes and code architecture, as well as any software documentation are protected by copyright. However, copyright does not protect ideas, concepts or algorithms implemented by the software. Thus, it is possible to use the same functionalities of existing software provided that the new software is totally different in its architecture and coding. It is not enough to change a few lines of code to circumvent copyright. Aside from possible protection under patent law, items such algorithms and concepts can be protected by other pieces of laws such laws on unfair competition or trade secrets.

To be patentable, a program must first meet usual law’s requirements namely novelty, inventive step and industrial applicability

Secondly in Europe, although the text of the European Patent Convention excludes from patenting computer programs as such, software may be patentable if it produces a “technical effect”. From case law we deduce that there is such an effect when the software has an effect on physical data, or the software operated equipment in a new way (for example, a program which creates new interactions between processors compared to existing systems has been recognized patentable). Logical methods and algorithms are not patentable as such, but their applications producing a technical effect can be patentable (e.g. digital data filtering of an image by using specific mathematical methods was found patentable). 

In USA a software invention may be patentable if it produces a “tangible and useful effect”


Technology Transfer Office

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CH-1015 Lausanne

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