Intellectual Property of Software: Laws and Protections for Developers

Photo Credits: Edar (Pixabay)

Shannon Flynn is a Guest Writer and the Managing Editor of Rehack Magazine.

You may subscribe to the idea that after you craft something, creatively or professionally, it is automatically yours by right. That is not always the case; at the heart of legal ownership is intellectual property rights. IP is thrown around a lot in business, especially as it relates to software development and creative projects. But how do IP rights apply to software? In this article, I will explore what software engineers and developers need to know to protect their work in both the U.S. and Canada.

Deconstructing Intellectual Property Rights

Intellectual property rights can be broken down into four different types. Copyright protection covers many creative works, including computer programs, databases, technical drawings, and mobile applications. Developers should also consider acquiring software patents and trade secrets. Trademarks may also apply to protect the company’s names, symbols, and brand assets.

Ultimately, intellectual property rights refer to an intangible form of ownership over a creation or finished product (in this case, a software application). Patents, copyrights, trade secrets, and trademarks each offer a specific kind of protection for software.

Software Patents

In the United States, patents offer creators exclusive monopoly for 20 years to manage an invention. Patent holders are free to produce, use and sell the item as they see fit. The trade-off is that they must describe their product in full detail to the U.S. Patent Office, which publishes this information publicly.

Unfortunately, “there is no legal or conclusive definition for a software patent.” This is because U.S. patent law does not allow for the patenting of abstract ideas.

However, software patents can be obtained for systems, methods, algorithms, techniques, display presentations, UI features, and similar mechanics. They must be presented as new ideas with practical use and they must be “non-obvious.”

Copyright Protection

Copyright is probably the most important intellectual property protection for software.

Copyright protection complements patent protection. While patents protect the inner workings of a software application, as well as novel ideas and concepts, copyright protection extends to the manifestation of those ideas. It provides protection for literary, artistic, dramatic, or musical works. In other words, it covers the source code, creative elements, and UI and visual elements.

For example, consider if someone creates an application that allows users to rent out items they own to members of their local community. The underlying code and deployment of that application are protected under copyright law, along with the unique UI elements, visuals, and content. However, the idea itself, a rental app, can be copied by others without repercussions, so long as they do not use the same source code and content.

Trade Secrets

A trade secret refers to any medium discovered and maintained by the original owner that remains private and usually provides a competitive advantage. It can include but is not limited to formulas, recipes, patterns, devices, compounds, tools, processes, and mechanisms. There is no federal trade secrets law or statute in Canada. Instead, Canadian trade secret laws are based on common law, or civil law.

There is no time limit on trade secrets, as they can be kept private forever. The only exception is if another party discovers them on their own, which is possible. Because they are hidden, trade secrets may only be stolen as opposed to being infringed upon.

Cybersecurity events pose a major risk as trade secrets may be stolen or required as collateral by the attackers. Not protecting trade secrets and intellectual property when working with other parties can have serious consequences, like the case with Aerojet Rocketdyne Holdings Inc. and its contracts with NASA and the U.S. Department of Defense.

With software, trade secrets are kind of tricky. They might include proprietary code and the inner workings or ideas behind it. But if those ideas can be gleaned through reverse engineering, or someone independently discovers them, there is no legal redress.

Trademarks

Trademarks are designed to protect many of the identity assets related to a business or venture. They are “concerned with a company’s need to identify its goods or services among its customers and potential customers.”

Trademarks protect a company’s name, domain, images, and product design elements. They must be registered to activate the legal protections. Some popular trademarks include Nike’s iconic check, Coca-Cola’s logo, and Disney’s Mickey ears.

In the software world, Microsoft’s Windows logo is an excellent example.

Open Source and IP

In the software development world, things can get confusing because of a few different practices. For example, open-source software and agreements can be difficult to navigate. Many open-source projects on depositories, such as GitHub, allow a community of creators to participate.

“When you tap into GitHub […], you’re free to access any of the files hosted on the platform, and you can even use the content as you wish. You can download the code and use the resulting software, study it to better your own projects, or build upon and improve it to make the existing project better.”

However, releasing an open-source project does not necessarily forfeit intellectual property rights. There are different licenses to choose from, and the permissions granted to umbrella users must be followed closely. They must abide by licensing rules, or they can face litigation.

Author versus Owner

When it comes to software, the author of various elements like code or visuals isn’t necessarily the legal owner entitled to intellectual property rights. This is a particular concern for employer-employee relationships, where developers work at a large company with dozens or even hundreds of others.

Unless it is otherwise stated, the employer owns what is created by the employee. Even independent contractors must abide by a legally-binding contract unless they’ve negotiated rights ownership.

Section 13(1) of Canada’s Copyright Act states the “author of a work” is the first owner of the “copyright therein.” In addition, Section 13(3) of the Act stipulates that any works created under a “contract of service” by employees are owned by the employer.

Protecting Your Work

The best way to protect your work, secure intellectual property rights, and lockdown trade secrets, where applicable, is to make sure you understand these concepts and how they apply to your project. If you’re working on a software application by yourself or with a small team, it will be your responsibility to protect your content and systems.

If you’re working for an employer, they likely already have protections in place, and you need to understand where you fit in. For instance, you probably do not own the rights to the content or code you are creating.

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