In France and in Europe, software is not protected by patent law. Only technical elements used by software can be patented. Therefore, the technical invention emanating from the software is patentable.
However, software is protected under copyright law, via a special regime, provided that it is original.
The condition of “originality” to benefit from copyright protection is not the same as for other creations.
Thus, software will be considered original as long as it is written in a computer language different from other pre-existing software and there is “a specific intellectual contribution and a personalized effort” from the developer. This personalized effort goes beyond the simple implementation of automatic and binding logic.
Software will therefore be protected by copyright if and only if the developer has made a real creative contribution distinct from simple intellectual know-how and the technique deployed.
Consequently, only the source codes, programming lines, flowcharts, and preparatory design material are protected by copyright.
Note that copyright does not require any particular registration formalism, as it arises from creation. It is, however, preferable to make a deposit with the Agence pour la Protection des Programmes (APP) or a bailiff to obtain a certain date of creation.
Sometimes, software publishers must carry out a legal deposit with the Bibliothèque nationale de France for software, if the software is made available to a public via the distribution of a physical medium.
Who holds the copyright?
The developer is not necessarily the one who holds the copyright to their software developments. Everything will depend on whether they are an employee or not.
– If they are an employee, the copyright will belong to the employer (Article L. 113-9 of the French Intellectual Property Code). This is an “automatic devolution of copyright”.
– If they are not an employee, the developer remains the holder of their copyright.
Recall that copyright includes moral rights (right to paternity and right to respect), which are inalienable, and economic rights (representation and reproduction, adaptation, distribution) which can be subject to assignment.
What about the intern who participates in the development of software during their internship? The intern is not considered an employee. Consequently, the intern will retain their rights to what they have developed.
What about the creation of software by several people? Who holds the copyright?
- If it is a collective work under the direction of a person or a company, the copyright belongs to that person or company (Article L. 113-2 of the French Intellectual Property Code).
- If it is a joint work, concerted between several authors, the copyright belongs to each author according to their personal contribution to the collaborative work. In the event of a disagreement between the co-owners, it will be up to the judge to settle the dispute.
What type of remuneration can a developer receive?
The developer’s remuneration can be a flat fee, although in principle it is proportional to the income derived from the exploitation of the work.
Is free software copyright-free?
Free software or “open source” is not copyright-free. Free software is always covered by copyright.
Reference:
Cass. Ass.plén., 7 mars 1986, Babolat c/ Pachot , n°83-10477
