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Software protection. Patentability or copyright?

[:en]How is software protected? Is it patentable? What is copy-right protection?

These questions were answered by the Court of Justice in a landmark judgment of 2.5.2012 (Case C-406/10)with which it interpreted Directive 91/250/EEC.

Specifically, the Court stated that:

  • the programming language and file format of data used within this programme are not protected by copyright on programmes;
  • he who licences a copy of software may, without the authorisation of the copyright holder, observe, study or experiment with the operation of said programme.

Underlying this decision is a policy adopted by Italy and Europe several years ago, which have chosen the path of the software protection through copyrightonly software that produces a technical effect should be considered patentable.

To briefly understand the difference between the two approaches, suffice it to say:

  • copyright is automatically granted to the author under Article 2575 of the Civil Code;
  • the granting of a patent (Art. 2585 of the Civil Code), on the other hand, must be explicitly requested from a patent office, carrying out a prior search to verify the originality of one's creation.

European and Italian legislators have opted for copyright protection of software, at the in order to balance the conflicting interests at stakeon the one hand the technological progress and, on the other hand, the software producers.

In this way, the author was granted the possibility of economic exploitation of the intellectual creation and, at the same time, everyone is allowed to enjoy the progress achieved (post the non-patentability of the product) avoiding the creation of stable positions of cultural and technological monopoly.

 

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by admin