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Legal proteccion of software in Spain

I. Applicable legislation

  • Directive 91/250/CEE – Legal protection of computer programs
  • Intellectual Property Law 1/1996
  • There are international standards that protect computer programs worldwide (Berne Convention and the Treaty of the WIPO copyright)

II. Protection Mechanisms

A) Intellectual property. Copyright

The Intellectual Property Law (LPI) protects original works and titles, including the software.

Also, the art. 10 TRIPS provides that Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)”.

Object of protection

In copyright only the expression is protected. That is, it does not protect the technical realization (that previous progress) but its expression, which is a disadvantage with respect to patent law.

A different question is whether copyright can also serve to protect the actual functionality of the program and the results achieved through implementation. These aspects, as the Court of Justice of the European Union, exceed the scope of the protection granted by copyright to the extent that “not a form of expression of that program” (judgment of 2 May 2012, between SAS Institute and World Programming Ltd.).

Regarding the criterion of originality, a computer program is original if it is an intellectual creation of its author, in the sense that it does not copy but is reached identical or similar to existing programs results. In short, if a computer program, either spreadsheet or word processing, or website design … has created uniquely individualized or without other copy shall enjoy the protection she receives copyright. Furthermore, it also includes their preparatory design material. Furthermore, the protection afforded by the Act extend to the technical documentation, user manuals and successive versions of the program as well as derivatives programs, except those created in order to cause harmful effects to a computer system (eg viruses) .

Nevertheless, protection of the program comes with the development of the source code while the program is not fully completed and ready to be marketed as a product.

Duration of protection and authorship

Authors are to be considered for:

  • works in collaboration, the creators;
  • and for collective works, the editor.

The duration of the exploitation rights shall be 70 years, but your calculation will vary depending on the authorship. Thus, according IP Law, where the offender is a natural person, the term will be 70 years after the author’s death. However, if the author is a corporation the duration of rights shall be 70 years as from the 1st of January following the lawful disclosure of the program or if its creation was not published.

Rights to exploit the program

The art. 17 LPI generally acknowledged to the author of any intellectual work “has the exclusive rights to exploit his work in any way and in particular the rights of reproduction, distribution, public communication and transformation, which can not be made ​​without your permission except in the cases provided for in this Act.

For his part, acquiring an industrial product (patent) can use it as you want and also some legal restrictions, it can give. However the program as protecting intellectual property means that as only a “license” to use, but can not make personal use of the computer program, and in particular that you can not make copies of the program, or transfer the program is acquired third. Free licenses granting further protect the software, by default, royalties, rather than restrict them.

Effects of protection

The protection of copyright is automatic, requiring no registration, economic and international, as it is extended by international treaties. The main effects are:

  1. Using the symbol ©.
  2. Using an appropriate license to use computer programs. Under a license agreement computer program, the licensor grants the licensee the use of a particular program in exchange for a certain price. It is important the correct description of the program or computer n the contract, as í and its functionalities.
  3. No inscription or in the Registry of Intellectual Property. To carry out the inscription in the RPI is to identify the program in some of the ways that the Regulations of the Registry. Thus the presumption of ownership of rights in favor of enrolling is achieved. In any case, the inscription or n to be voluntary, because copyright exists solely because of the creation of an original work.
  4. specifically punished
  5. The rights holder may seek interim measures in defense of those rights.

B) Industrial property. Patents

Currently, the patentability of computer programs is the subject of a proposed EU directive. The choice of this system would entail the advantage to enjoy the monopoly, or to negotiate with a monopoly on sales or licenses. However, the software is not patentable, although the SPTO and EPO allowed software patents when they have a new technical solution.

C) Other industrial property rights. Industrial design and trademark

We must also not forget that in addition to the purely technical components that incorporates software, there are also within the same range of accessories other elements that play a key role in the commercial section and product marketing, such as animated graphics, templates, designs, logos, etc., that appear in the user interface, or the actual name that is named the program, which should be further protected through other industrial, such as industrial design or trademark.

D) Industrial or business secrets

Regardless of what protection mechanisms are available, it is always advisable to take measures used to establish the copyright for the software if necessary. In this sense, although the notarial deposit or private repository (also called escrow) are particularly suitable when you opt for strategies such as secrecy, registration software in the Registry of Intellectual Property is the biggest advantages contributes to effects evidence as we have previously shown, as it gives the holder a rebuttable presumption of authorship requires a third party to have to prove he is the real author, the latter issue that generates many difficulties in practice.

You must also shielded the internal organization of the company through confidentiality agreements and mechanisms to prevent the departure information:

  • Unfair Competition Act
  • Workers’ Statute

E) Criminal Law protection

Finally, the Penal Code also criminalizes the discovery and disclosure of secrets.


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