Author’s right and software

Italiano

Author’s right

Authors’ rights protect creative work in the fields of literature, music, figurative arts, architecture, theatre and cinema. The law allows the author the moral right to protect his/her personality (which comprises the rights of authorship, integrity and publication of a creative work) as well as the right to commercially exploit his/her creative works. Such rights last for the whole author’s life plus an additional seventy year period.


Software

It is possible to protect software in two different ways: the author’s right and the patent right. In many cases, the same software (or at least a part of it) can be protected by both rights.

The author’s right protects software coding, i.e. the way it is written (programming language/machine language). The patent rights protects the functionality of software, i.e. how it can be used and what results can be produced, not considering the coding.


Protecting software through the author’s right rules

Software is protected by the law regulating the author’s right, because it is considered a creative work. In Italy and in many other countries software and its codes are equated with literary works - as provided for both by the Italian law on author’s right (law 633/1941), in the Italian territory, and by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in the international field.

To obtain the protection provided by the relevant laws, software has to be original, compared to pre-existing software. The protection, which includes moral and property rights, arises automatically when a piece of software is created. Moral rights are inalienable, whereas property rights are alienable; the last ones basically consist of rights of economic use (right to publish, share and market software). The author (i.e. the creator) of the software is the right holder, yet if he has made the software while working as an employee, then the employer is the holder of the rights of economic use.

Software can be registered with the Public Register for Software at the SIAE (Italian Society of Authors and Publishers). The publisher of the software is entitled to apply for registration; the publication date is the one on which the software has been used/sold by the author for the first time. The procedures for registering software can be found on the SIAE website. The specific piece of software that has been filed for registration cannot be viewed by anyone. The registration of the software with the public register is proof of the existence of that software and of the relevant author.


Protecting software through a patent

Not every software can be patented; this is possible only if the software provides a technical solution to a technical problem and if it meets the ordinary patentability requirements, with special reference to novelty and inventiveness. In other words, such software has to have a “technical effect” that goes beyond the normal interaction between a program and a computer. For example, software for data compression and video acceleration can be patented, but accounting programs cannot, since they provide solutions to economic problems.

Software: differences between patent protection and author’s right protection

  • The author’s right protects software as if it were a literary work, i.e. the way it is written. Therefore, when a new program is made for the same function but through a different writing, the relevant author’s right is not infringed;
  • The patent protects software methodology, i.e. the sequence of execution phases, expressed in logical or in algorithm form.

SIAE (Italian Society of Authors and Publishers)