Copyright on software

The legal protection of software is regulated by the Copyright Act (Aw). Copyright enables the creator of a computer programme to exploit his work. With the help of his copyright, the creator can, among other things, set conditions for the use of his work.

Copyright protection for software is automatically obtained when the writing of the programme is completed. Nevertheless, it is wise to record that one is the copyright holder, for example when the software is not intended for a wider audience. A solicitor can legalise a copy as a true copy, which proves that the work has been protected from a certain date.

Copyright

The Copyright Act regulates the protection of so-called “works”. The Act states that computer programmes must also be included under this concept. However, not every work – and therefore not every computer programme – deserves protection under the Copyright Act. For copyright to arise, the work must “possess its own original character and bear the personal stamp of the creator”. This means that there must be some degree of creativity. A computer programme is protected by copyright insofar as its concrete form of expression and preparatory material are concerned. The latter includes, for example, the functional and technical design of the programme. The ideas and principles underlying the software are not protected. The provisions regarding protection are the result of European legislation. This means, among other things, that the European Court of Justice is the highest authority for interpreting the provisions.

Copyright holder

The basic principle is that the person who creates a computer programme holds the copyright to it (Section 1 of the Copyright Act). In Section 4 of the Copyright Act, the legislator has laid down a rule of evidence for this. The person whose name, logo or trademark (a copyright notification alone is not sufficient, although it is of course advisable) is mentioned on the software as the creator is deemed to be the copyright holder. However, computer software often consists of different components that have been brought together. The programme that is the result of such a composition is often published by a third party and not by the individual creators of the separate components. In that case, the creator of the computer programme is deemed to be the person under whose direction and supervision the entire work was created or the person who collected the various components (Article 5 Aw).

However, most computer programmes are written in the course of employment. Programmers write most software while working for their employer. Copyright law has created the concept of fictitious authorship for this purpose. This means that the employer is deemed to be the copyright holder from the moment the work is created (Section 7 of the Copyright Act). It is not necessary for employees to actually transfer copyright to the employer. However, there must be a relationship of authority in the sense of employment law (this is lacking, for example, when working with freelancers and interns). The creation of computer software must also fall within the scope of the employee’s duties. It is therefore important to agree with freelancers when contracting them that the copyright to the work they create will vest in the client.

Finally, Article 8 of the Copyright Act stipulates that a legal entity is considered the creator of a computer programme if it publishes the programme as its own, without mentioning any other name as the creator. The only exception to this is if the actual creator can prove that the computer programme has been published unlawfully.

Exclusive rights and exceptions

The copyright holder has the exclusive right to publish and reproduce his work (Articles 12 and 13 Aw). Reproduction occurs when multiple copies of the programme are made. It is irrelevant whether the copies are permanent or temporary. For example, loading the programme into the working memory of a computer also constitutes a copyright reproduction. Making the software public includes, among other things, marketing it or publishing it on the internet. The criterion is whether the software becomes available to the public. It is important to note that the publication of a reproduction (e.g. marketing a copy) also falls under the concept of publication.

The Copyright Act contains a number of provisions that limit the exclusive rights of a copyright holder. Examples include the right to quote or the right to use a work for scientific research. In addition to such general restrictions, there are also provisions that specifically limit the rights of the creator of a computer programme. These are laid down in Articles 45j to 45m of the Copyright Act. These exceptions to the exclusive rights of the creator can be described as minimum rights of the user. They are mandatory in nature and therefore cannot be set aside by contractual provisions.

Minimum rights of the user

As a lawful user of a computer programme, you are granted rights that sometimes go further than you might think at first glance.

For example, Article 45j of the Aw allows the lawful user to reproduce a computer programme if and insofar as this is necessary for the intended use of the programme. This includes, among other things, loading or displaying the programme. Correcting errors, translations and improvements corresponding to an update version also fall within the scope of this article. The lawful user therefore has the right, independently of the creator, to correct imperfections in the software. However, the creator is not obliged to make the source code and technical documentation of the computer programme available to the acquirer for this purpose. In addition, it is arguable that modifications that unlock functionality deliberately protected by the creator do not fall within the scope of the actions permitted in this article.

Article 45k of the Aw describes the right of the user to make a backup copy of the computer programme insofar as this is necessary for the intended use. The circumstances of the case determine the scope of this right. For example, the article does not set a limit on the number of copies that may be made. It is conceivable that making a backup copy is necessary for responsible installation and testing activities, for complying with statutory retention obligations and/or for troubleshooting. The making of backup copies cannot be excluded by agreement.

Article 45l of the Aw stipulates that it is permitted to study and test computer software in order to ascertain the underlying ideas. However, this must be done during the normal use of the programme as referred to in Article 45i of the Aw. Users are free to use tools (such as electronic testing and control techniques).

In line with this, Article 45m of the Aw stipulates that decompilation of a computer programme (reverse engineering) is permitted, provided that this takes place under the strict conditions set out in this provision. Decompilation converts the machine language of a computer programme into a higher programming language. This language (source code) is understandable to experts, allowing them to determine the structure of a computer programme. The conditions under which decompilation may take place are as follows.

1. The actions must be indispensable for obtaining information necessary to achieve the interoperability of an independently manufactured computer programme with other computer programmes;

2. Decompilation may only be carried out by the lawful acquirer of a computer programme;

3. The data necessary to achieve interoperability must not already be readily and easily available by other means;

4. Decompilation must be limited to those parts of the original computer programme that are necessary to achieve interoperability.

The information obtained through decompilation may not be misused. The information may only be used to achieve interoperability, may not be disclosed to third parties and may not lead to the development of a non-new, original computer programme. Furthermore, the information may expressly not be used for any other actions that constitute a copyright infringement.

Protection of software by means of a patent right?

Although computer programmes as such may not be considered a patentable invention under the regulations, the creator of a computer programme is sometimes granted a patent right. This can occur when the software creates a new and inventive technical effect. The software must therefore contribute to the advancement of the state of the art. It goes without saying that this will not be the case in all instances.

Frequently asked questions / FAQs about copyright on software

How can a software creator prove that they are the copyright holder?

Proving that you are the copyright holder of software sounds easier than it is, especially if the source code does not speak for itself. Under Dutch law, copyright arises automatically when an original work is created, but the burden of proof rests with the creator. Anyone who wants to seriously prove that they are the creator of an application or algorithm must be able to show when and under what circumstances the work was created. And please note: in the case of commissions, copyright usually remains with the creator, unless otherwise agreed. This is a legal pitfall that clients regularly fall into.

What exceptions to copyright apply specifically to software?

Software may be strongly protected by copyright, but that protection is not absolute – and the Dutch Copyright Act contains a number of specific exceptions that maintain the balance between creator and user. For example, the lawful user may make a copy for normal use and for backup purposes (Section 45i Aw), and it is permitted to observe, test or imitate the functioning of software, provided that this is done during lawful use (Section 45m Aw). Reverse engineering is also permitted under certain conditions, for example to achieve interoperability with other programmes (Art. 45n Aw). These exceptions are not a carte blanche, but rather a legal safety valve – intended to prevent abuse of copyright monopoly. At Fruytier Lawyers in Business, we know these boundaries down to the last detail, because it is precisely there – in that small space between prohibition and permissibility – that the legal room for manoeuvre of software developers and users is determined.

Questions?

If you would like to know more about this subject, copyright or intellectual property, please contact our specialist.