Can I Protect My Software?

The legal framework

There is no single "software right". Several regimes overlap, and each protects something different.

Copyright

In the EU, computer programs are protected by copyright as literary works under Directive 2009/24/EC, implemented in each member state's national law. Protection covers the expression of the program in any form, including source code and object code, and preparatory design material. It arises automatically on creation, without registration, provided the program is the author's own intellectual creation. Copyright does not protect ideas, principles, algorithms or functionality as such.

This has a practical consequence. Copyright stops someone from copying your code. It does not stop a competitor from writing different code that does the same thing.

Patents

Under Art. 52 EPC, inventions in all fields of technology are patentable if they are new, inventive and industrially applicable. Programs for computers "as such" are excluded (Art. 52(2)(c) and (3) EPC), as are methods for doing business. In practice, the EPO grants patents for computer-implemented inventions that have technical character, meaning a technical effect beyond the normal interaction between program and computer, for example in controlling an industrial process, in processing images or signals, or in the internal operation of a computer. When assessing inventive step, only the features that contribute to the technical character are taken into account.

A claim to an abstract algorithm or a pure business method is refused. A claim to a technical solution to a technical problem, implemented in software, can be granted. The line is not always easy to draw and depends on how the claim and the description are drafted.

Trade secrets

Source code, training data and architecture documents can be protected as trade secrets under Directive (EU) 2016/943, which every member state has transposed into national law. To qualify, the information must be secret, have commercial value because it is secret, and be subject to reasonable steps to keep it secret. Access controls, confidentiality clauses and a record of who has seen what are the evidence of those steps. Trade secret law does not protect against independent development or reverse engineering where that is lawful.

Other rights

Names of software products can be registered as trademarks, and the appearance of a user interface can be protected as a registered or unregistered design. Databases may fall under the sui generis database right of Directive 96/9/EC.

Ownership

Under Art. 2(3) of Directive 2009/24/EC, where a program is created by an employee in the execution of their duties or following the employer's instructions, the employer is exclusively entitled to exercise the economic rights, unless the contract provides otherwise. This rule does not apply to freelancers and agencies. For them, you need a written assignment of the copyright or at least a clear licence. For inventions by employees, national rules differ. Some member states have a specific statute, while others leave it to the employment contract and case law, so record it in writing.

In practice

A software company builds a platform for route planning. Its source code is protected by copyright, but its real advantage lies in an optimisation method that reduces delivery times. The company keeps the source code and the method secret, with access limits and confidentiality agreements. It also considers a patent. A European patent application that claims a method of controlling vehicle routing in view of technical constraints, such as sensor data, could be granted, whereas a claim to the mathematical method alone would not. If it files, it must do so before publishing any article or presenting the method at a conference. A patent publishes the method in the application, which is the price of the exclusive right, so the company has to choose between patent and secrecy for that method.

A start-up outsourced the first version of its app to a freelance developer. There was no assignment clause. The start-up now wants to raise funding, and the investor's due diligence finds that the freelancer still holds the copyright in the core code. The fix is a written assignment, signed before the round, which is easier to obtain before a dispute than after.

A third company uses open-source libraries under a copyleft licence in its product. The licence requires that it makes the source code of combined works available under the same terms, which conflicts with its plan to license the product commercially. A review of the libraries and their licences before launch avoids that conflict.

Software-related income can also have tax consequences, depending on the country. Special regimes for copyright or innovation income often look at how the rights are held, which is why ownership should be settled early. Our copyright tax regime service covers this.

Frequently asked questions

Do I need to register my software to have copyright?

No. Copyright arises automatically. You may keep dated copies of the code and records of authorship as evidence.

Can I patent software in Europe?

Not a program as such. But a technical solution implemented in software, with a technical effect, can be patented. Each case depends on its facts and its claims.

Who owns code written by my employees?

In principle the employer, for programs created in the execution of their duties, unless the contract says otherwise. Contractors are different: obtain a written assignment.

Is my source code safe if I keep it secret?

Secrecy protects it as long as it stays secret and you take reasonable steps to keep it that way. It does not protect against independent creation.

How this connects

Whether to patent, keep secret or rely on copyright is a decision for your patent strategy. Our patent analysis function tests whether a software invention has a patentable technical contribution, the cost estimator budgets the filing, and our Document Studio produces the assignment and licence terms that settle ownership. Tax treatment of software income is covered in the copyright tax regime.