Securing IP rights in the IT environment
IP rights grant the owner exclusive rights in particular. The owner can therefore prohibit any other person from using his IP rights. Accordingly, a user may only use software if the owner of the IP rights has granted him a corresponding authorisation to do so. The following IP rights can exist in software:
Copyright: if the software achieves a certain degree of individuality
Patent rights: very rare, but can be applied for under certain circumstances
Trademark rights
Design rights: Protect only graphic elements of software
In addition to the protection of IP rights, there is additional protection via the provisions of unfair competition law (UWG; protection against unauthorised exploitation, protection against imitators, etc.).
What do IP rights protect and who is the author?
The requirements for copyright protection of software are that it must be an intellectual creation that has an individual character. Software must be created by human hand, automated tools that can generate software do not fulfil this requirement and the copyright thus arises with the programmer of the corresponding tool, since the new code is a mere adaptation of the original.
Software must be unique, but its quality is not important. It only has to be the result of an own creative effort and it has to be different from existing software.
The software is protected via the source or object code, whether it is integrated somewhere (e.g. as firmware) is irrelevant. Further details of the software (e.g. structure and design) as well as its design materials are protected as well as the interface definitions and user documentation belonging to the software (but these are so-called language works).
In contrast, the mere idea underlying a software (development) is not worthy of protection.
The authors of software are one or more natural persons; legal persons must have the copyrights transferred to them by the creator, which, according to Art. 17 URG, is automatically the case with employment relationships in the area of software.
How are IP rights transferred?
IP rights can be transferred to other persons, whereby the author can rely on his IP rights.
personal rights of the author. This gives the acquirer a position similar to that of the author and allows him to decide what happens to the rights.
The more widespread variant in the IT sector is the licensing of software, i.e. the granting of rights of use. A licence can be structured very differently. Software can be licensed in perpetuity ("forever") or for a certain period of time, exclusively (no other users may use the software) or non-exclusively. The licence can be a "simple" licence (supplier can use the software himself), and the supplier can allow the licensee to sub-license the software.
The distinction between a transfer of copyright and the granting of rights of use is enormously important because only the holder of the rights of use is entitled to assert copyright infringements against third parties, and only he himself can transfer rights of use to third parties.
The use of software for pure enjoyment, such as listening to music or reading a book, is not possible. This is because software is copied (e.g. in the main memory) or must be installed when it is used. The URG therefore also grants the lawful acquirer of software various powers which are in themselves only available to the author (e.g. making backup copies, temporary reproduction, etc.).
Which form makes the most sense for me?
Unfortunately, there is no such thing as THE sensible model. Rather, it depends on the business model of the originator (or distributor) in each individual case. It plays a big role in which stage a software provider is in and what the goals of the respective software are, and whether it is e.g. an on-premise, a SaaS or another solution.
With its many years of experience and good knowledge of both sides (providers as well as users) of software licence agreements as well as all other legally relevant IT issues, Wicki Partners AG provides support in choosing and designing the best solution for each business model.
This article was written by RA Sergio Leemann.
If you have any questions or concerns on this topic, please contact Balthasar Wicki .