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Is software protected by copyrights or patents?

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Computer software or programs are instructions that are executed by a computer.

Software is protected under copyright law and the inventions related to software are protected under patent law.

Source Code and Object Code

Computer software are instructions that form source code and object code. Software takes a lot of skill, time, and labor to develop them, so it is natural that you want to protect all your hard work. Computer programs can be copied and used by unauthorized persons. Your actual software and app source code may be protected under copyright law,. The concepts and inventions related to software may be protected under patent law.

COPYRIGHT PROTECTIONS

Copyright Law defines computer programs as literary work, and as such is protectable under copyrights. For example, computer programs are sets of instructions expressed in words, codes, schemes or other forms, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. The words, codes, schemes, or other forms may be protected under Copyright law as creative works the same as a book, a movie, or a work of art (and often to the coder, the source code is a work of art).

Copyright protection extends for author’s lifetime plus 70 years. For works made for hire, the term of the copyright is 95 years from first publication or 120 years from creation, whichever is shorter. Copyright protection is inherent at the time of creation and is automatically protected, and may appear to be attractive and free option to protect your software. Additionally, if you want to be able to definitively define the date you created your creative work, you can register your copyright with the Library of Congress.  

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It should be noted that copyright protects the expression of an idea and not the idea itself. Hence, in the case of software programs, it is the software program that is protected, and not the functionality of the software programs. Unless you only want to protect exactly how the source code is written, it may not be a good idea to rely solely on copyright law to protect software related inventions. To protect the functionality of the software programs you should seek patent protection.

Not all ideas are good ideas.

Patent Protections

In the United States software is patentable. Software patents are typically referred to as computer implemented processes. Software can be protected in the U.S. if it is unique and tied to a machine. Most importantly, for software to be patentable, the software needs to offer some kind of identifiable improvement. Merely doing something that is known on a computer (like adding numbers together) is extremely unlikely to be patentable.  For example, U.S. patent law excludes "abstract ideas", and this has been used to refuse some patent applications involving software.

In Europe, "computer programs as such" are excluded from patentability.  The EPO holds that a program for a computer is not patentable if it does not have the potential to cause a "further technical effect" beyond the inherent technical interactions between hardware and software.

While source code may not be patentable, it does not mean that a software invention may not be patented. One way of determining whether a software invention will be considered patentable subject matter or not, is by trying to judge whether the software invention offers a technical solution to a technical problem. The invention may be considered patentable subject matter if the software invention offers a technical solution to a technical problem.

Advantages of Patents over Copyrights 

A patent over a software invention can be used to prevent others from utilizing a certain algorithm without permission or to prevent others from creating software programs that perform patent protected functions.

In contrast, copyright law protects only a particular expression of an idea i.e. copying of source code or a portion of it, and not the copying of the idea/functionality. 

Accordingly, patents offer much broader protection. 

Trademarks protect brands

There are significant differences in the protections offered by patent and copyright. Here is a summary of the differences in the protections offered by copyrights and patents for software:

  • Patents protect functional aspects of an invention. Copyrights protect the idea as it is expressed. Under copyright, the form of expression is protected, and not the idea or concept.
  • Copyrights become effective the moment a work is created in a fixed, tangible form of expression. Patents need to be applied for before they become public domain (in the U.S. they become public domain 1 year from a public disclosure or offer for sale).
  • Copyright protection extends for author’s lifetime plus 70 years (unless it is a work for hire as discussed above), whereas term of a patent is 20 years.
Trade dress protects the overall appearance of your product or packaging

Wrapping it up

Any software program, whether there is an inventive aspect involved or not, is protected under copyright. 

The dilemma of whether to seek for patent protection arises when there is an inventive aspect associated with a software program or a process. In case the software program or a process has inventive aspects, then you should definitely explore the option of protecting it using patents because the protection offered by patents is much broader and stronger as compared to copyrights. 

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Comments


  • Great article and describes the protections I automatically have as a software developer, however it doesn’t cover the intellectual property rights of a business owner who contracts the software development to an external agency (which I was interested in).
    I have a signed NDA which has a comprehensive IP clause …. but not sure that this protects me in this instance if the agency refuses to share the source code for example.

    Sarah Packman on
  • Great post, exactly what is needed, i as well believe this is a very superb website.
    This is actually the kind of information i have been trying to find.
    Thank you for writing this information.

    SandraOppof on

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