Software protection

In France, software protection falls under copyright. Article L. 112-2 of the Intellectual Property Code lists software, including preparatory design material, among works of the mind. Software is protected from its creation, without any filing, on the sole condition that it is original. Patent protection for software is only available for a computer-implemented invention producing a technical effect, the program as such being excluded from patentability.

The conditions of software protection

First, originality means, for software, a personalised effort by the author going beyond the mere implementation of automatic and constraining logic. Next, protection covers the form of expression: source code, object code, architecture and design material. Finally, ideas, principles, algorithms as such and functionalities are not protected. The Court of Justice of the European Union has held that neither the functionalities of a program nor the programming language constitute a protected form of expression, whereas a graphical user interface may be protected if it is original. The texts can be consulted on Légifrance.

Rights in software

Article L. 122-6 reserves to the author the reproduction, translation, adaptation, arrangement and placing on the market of the software. Article L. 122-6-1 provides exceptions for the lawful user: acts necessary for intended use, back-up copy, observation and study of the functioning, and decompilation for interoperability purposes. The economic rights in software created by employees in the performance of their duties vest in the employer, under Article L. 113-9. The moral rights of the software author are reduced. Protection lasts seventy years after the author’s death or, for collective works, after publication.

Key points

In practice, software protection is supplemented by trade secrets for undisclosed source code, by licence, development and maintenanceagreements, and by proof of the date of creation. Disputes concern ownership, in particular for external providers who have not assigned their rights, and infringement by copying code or exceeding the licence. The firm handles these issues, as presented on the page contracts.