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A European Union Directive (91/250/EEC) has organised in the Whole European Union a common regulation based upon copyright law in so far as being a literary work according to the Bern Convention for the protection of computer programs or software.

The main reason for protecting computer programs by copyrights was initially the fact that computer programs (as such) were excluded from patentability in Europe by the European Patent Convention (EPC).

The European Directive was implemented in Belgium by the law of June 30, 1994 voted in the same time than the general law on copyright.

What to protect?

A computer program (or software) can be defined as a total of indications or instructions meant for being used directly or indirectly in a computer in order to obtain a certain result.

Protection does not only extend to the software, in other words the program as such, but also to all preparatory and conceptual material, namely the description of the program and of the used material as well as to the functional analysis, the instruction manual and even to the presentation of screens.

As a result, protection extends to completed and achieved works, as well as to unachieved works, outlines, drafts or preparatory documents.

Once more, ideas and basic principles of the program are excluded from protection (see particularly art. 2 of the Directive) (see also art. 9 of TRIPS).

Additionally, although not specifically mentioned in the European Directive, mathematical methods are equally excluded from protection (application of art. 9 of TRIPS).

Furthermore, it is not excluded that other forms of protection than those of copyrights, would be possible for protecting the same works. More specifically, a double protection, by copyrights and by patents' law, may be envisaged.

Who is protected?

According to the general principles on the protection of literary works by copyrights, based upon the Bern Convention, the author is the physical person or the group of physical persons who created the program. Consequently, this refers to the original holder(s) of the copyrights who also created the work.

However, it is also specified in the European Directive (91/250/EEC) that, in case legislation of a member state authorises it, a moral person can equally be the holder of the copyright.

Particularly, the Belgian law - putting into practice the European Directive - mentions that in case the creator is the employee of a moral entity or a company, the employer will hold the rights whenever the new program was made during the execution of an employee's function.

In general, it is appropriate to note that rights resulting from copyright protection are in general determined by contracts such as contracts of ownership, co-ownership, confidentiality, licence, etc if not contradicted by law.

When is one protected?

Protection is installed when the literary work is created.

Nevertheless, in specific cases of software or computer programs, difficulty lies in the fact that in certain cases, there is no publication of the software as such. Very often one tends to keep the software confidential or even secret, and to avoid all unwanted disclosure (particularly for the source code).

However, in order to prove your copyright, it is necessary to turn, for instance, to a public notary, or to proceedures foreseen by the national laws like registration proceedures or others to establish the creation date.

The duration is equal to those applied for works protected by copyright law, namely from the date of creation onwards whenever this date can be proved, until 50 years after the author's death (70 years in Belgium).

How to protect?

In Europe there exists no obligation of registration.

However, it is necessary to be able to prove the date of creation; therefore, it is highly recommended to foresee means to provide proof.

Otherwise, it is recommended to insert with all publications the creator's name or the entitled party's name, followed by the date of creation and the © acronym. This, however, involves no obligation for other formalities, such as filings, registrations, etc.

For more information on copyrights click here.