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Copyright & Software

You said that software is protected by copyright? How does this work?


Copyright may protect original software -- both the executable and the source code (CJUE C-406/10 SAS Programming). The graphic interface may also be a copyright-protected work. Various functionalities, however -- like ideas -- are not protected by copyright (CJUE C-406/10 SAS Programming).

The user will usually be asked to accept a copyright license before he/she can install the program; anecdotally, some may even argue that opening the box with the support on which the program is recorded equals acceptance of the end-user license (hence the term "shrink-wrap licenses"). Please keep in mind that in general the provisions of copyright licenses override statutory exceptions (see Copyright Exceptions)!

 

You mentioned that “regular” exceptions don’t apply to software - so, are there any “special” exceptions concerning software?


Yes, there are three of them [art. 5 and 6 of the Software Directive]:

  • the making of a back-up copy by a lawful user of the computer program; this may not be prevented by a license;
  • a lawful user of the program may observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program; this, according to some commentators, allows the user “to see what’s visible”;
  • a lawful user of a program may decompile it (i.e. to reconstruct the source code from the object code), but only if it’s indispensable to achieve interoperability of the program with other programs, and only if the decompilation process is limited to the parts that are necessary to achieve this interoperability. This is not authorised, however, if the information on how to achieve this interoperability is readily available. It is forbidden to share the source code so obtained, to use it for other purposes than achieving interoperability and in particular to develop a similar computer program.

 

What about software patents?


There is a lot of controversies concerning patentability of software. In the EU, "programs for computers" are not patentable as such (art. 52 of the European Patent Convention), but a non-obvious use of software to solve a technical problem may be protected by a patent.

For special rules concerning software licensing and Free/Open Source Software see Data and Software Licenses.