Today we shall talk about intellectual property, which is a concept that had existed long before developers’ hands and brains created Artificial Intelligence. Aside from that, we shall figure out, what exactly the intellectual property law in the IT area does (or does not) protect.
The concept of “intellectual property” became an integral part of the daily life in the middle of the 20th century, when the Convention Establishing WIPO (World Intellectual Property Organization) was signed in Stockholm in 1967. In accordance with the Convention, the concept of “intellectual property” includes the rights relating to literary, artistic and scientific works, inventions, performance activities, industrial designs, trademarks etc.
Later on, the rights concerning integrated circuits, radio signals, databases, domain names and software were included within the WIPO scope of activities. Now in accordance with EU legislation, the intellectual property rights have been chosen as the main method of protecting computer software.
On the one hand, such protection is easy to ensure the following: it is enough for the software to be original. On the other hand, one has to keep it in mind that the protection does not cover the functional capabilities of the software.
This explains why the numerous similar applications may coexist peacefully in the market.
One of the principles that are the foundation of intellectual property is the dichotomy (separation) of an idea and its expression. Intellectual property protection covers not ideas but our expression of the ideas. This is why plagiarism is not at issue where two works just share the same concept.
If we are talking about software, the intellectual property law, mainly, protects the source code that is how we express the idea, which we are trying to implement. However, it does not protect the programming language.
The intellectual property law also protects the preparatory documentation, technical documentation and user manuals for the software program, provided they are original works.
The appearance of the graphic user interface may be protected as a graphic work (in effect, as a utility model), provided it meets the criteria of novelty and individuality.
Therefore, the protection covers the following:
Intellectual property laws do not provide the protection of the following functions: “Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright.” In the EU, they believe the following: “accepting that the functionality of a computer program can be copyrighted is tantamount to forcing it to monopolize ideas to the detriment of technological progress and industrial development.”
Moreover, legitimate users of computer software have the “view right.” They may make observations, study or check its functioning, provided this is done during the performance of any operations for loading, displaying, launching or saving the software program, which they are entitled to perform.
In one of Spanish courts of law, an interesting case was considered. The allegations concerned the CRM software in the automotive industry. It was maintained that the software was plagiary because some of its functions coincided with pre-existing software programs. However, the Provincial Court of Appeal of Madrid upheld the first instance decision and dismissed the plaintiff's complaint in its entirety.
To arrive at this conclusion, the court of appeal paid much attention to the availability of a result of an independent development, meaning the unique source code of the software. The organization developed its own software program to imitate the functions of the plaintiff’s software program, which fact in itself does not mean an infringement upon plaintiff’s copyright.
The Court ruled: “a simple observation, study or check of the functioning of computer software without a prior authorization by the owner with a view to determining the ideas and principles embedded in any element of the software program does not in itself constitute an infringement.”
In the IT sphere, the developer also creates a work (a software program) to implement an idea or a function using the code written in a programming language. In this case, the code is usually the IP item.
This is important to know, when the relations are regulated with the developer writing the code for your business. So that you as the owner of an IT business could use safely and legitimately the software authored by the developer, you should treat the Contract with the Developer in dead earnest. It will clearly set forth how, when, under what conditions and within what scope the intellectual property rights held by the developer would vest in you.
Violetta Loseva
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