With software being a multi-facetted phenomenon, the legal protection of software is a complex matter. Software usually is copyright-protected. Patented software is another option but is subject to stringent requirements.
Under copyright law, software is protected if it is “the maker’s own intellectual creation”. The maker is required to have created the work independently (as opposed to copied from other works), and with a certain degree of creativity. This threshold is quite easily met, but excluded are software-matters that follow directly from functional requirements and conditions, or if there is only one way of implementation.
In some cases, software can be patented but strict requirements apply. Our rule of thumb is that the software should deliver something concrete in terms of technological and hardware innovation. The software should in fact enhance the operation of the computer. Device drivers, playing or making audio/video recordings or communication software are a few examples. A magnifying glass for tiny texts is useful only to the user but has no effect on the computer. Such software is therefore not patentable.
In order to use another party’s software, you need a license. Such licenses are often provided along with the software in a box (shrink-wrap license), on the website or shown during the installation procedure (click-wrap license). License terms and conditions can be shown to users in numerous ways. However, this does not mean that the user is always bound to these terms and conditions. An open source license is a particular type of terms and conditions.
No specific rules exist for software development. According to the law, a project entailing the development of tailor-made software is deemed to be a “contract for the provision of services” in which a contractor undertakes specific activities at the client’s request and their instructions.
When providing these services, the contractor is bound to the “duty of care as a good contractor”. But what exactly is “the duty of care as a good developer’’?
Due to the intangible nature of software, it is legally often considered equal to the concept or the underlying functionality of software. As a result, people often seek an opportunity to protect that concept or idea. Protecting an idea, however, is not an easy task because, in principle, ideas do not get any form of legal protection at all. Only when an idea has been worked out, can it perhaps be protected by copyright, a patent, a trademark or design right.
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