Legal aspects of programming – questions and answers

The rights to a computer programme, primarily copyrights, are governed by the applicable legislation. When writing a programme, especially to order, such rights should be taken into account. From the programmer’s perspective, the legal aspects of programming are those presented in the questions and answers below.

Is a computer programme protected by copyright?

YES  All works / creations are protected by the ACT of 4 February 1994 on copyright and neighbouring rights (hereinafter: Copyright). Computer programmes also fall within the category of “works”.

A Work shall encompass each manifestation of creative activity of individual nature, determined in any form, regardless of its value, purpose, and manner of expression. A Work is subject to copyright at the moment of its determination, even if incomplete. Protection is afforded to authors regardless of whether they complied with any formalities.

Each form of expression of a computer programme is protected, including the source code and the object code. Also translations of a computer programme to other programming languages are protected, and so are its alterations or corrections, adaptations or organising, provided that they are creative in nature. Strictly technical activities (such as correction of errors) are not creative in nature.

Pursuant to Article 74(2) of the Copyright Law, protection afforded to a computer programme includes all forms of its expression. The ideas and rules underlying any element of a computer programme, including connections, are not protected.

What does the copyright protection of a computer programme offer?

The person who is entitled to the copyright of a computer programme is solely authorised to use the programme and dispose of it, as well as to receive remuneration for the use thereof by third parties. In other words, s/he may in principle multiply the programme, translate it, alter it, etc. S/he may also sell it or grant a license to use it to another person.

Who is entitled to copyright in a computer programme?

Generally, copyright is vested in the author. As regards a computer programme, a programmer or programmers (if it was a joint effort) is/are its creator(s)/author(s). If, however, software was created as part of performing the employment duties, the right to the programme shall be vested in the employer, unless the parties have agreed otherwise.

Remember that it is possible to transfer the economic rights to a computer programme to a third party. It usually happens when the programme is made to order, because the orderer usually wants to have the exclusive rights to such a programme.

For the economic right to a computer programme to be effectively transferred, an agreement must be concluded. The agreement must be in writing. Otherwise it is invalid. The agreement must specify the fields of use of the software, in other words it is necessary to specify how the buyer may use the software.

Is it necessary to provide access to the source code for the software made to order?

It depends on the provisions of the agreement with the counterparty. It is assumed that the source code and the object code are two forms of the same computer programme. Consequently, if the economic rights to the software are transferred to a customer to whose order the software was created, the customer will acquire the rights to both versions of the code. Acquiring the economic right to software, including to its source code, does not mean, however, that it should be made accessible. This will be necessary only if such an obligation is provided for in the agreement, and in case the agreement grants the buyer the right to alter the software, including the right to decompile it. Generally, for the buyer to be able to exercise the right, he must have the code at his disposal.

Can the source code be re-used?

It depends. If economic rights to the software are transferred to the customer, the transferor also disposes of such rights with respect to the source code. Thus, he can no longer use it or dispose of it. However, if he still wants to do it, he must get the customer’s consent in this respect. The best and safest way is to include the relevant provisions governing this aspect in the agreement under which the economic copyright to the software is transferred.

Can ready-made fragments of Open Source be used to create commercial software? If so, what are the rules for such use?

 YES The idea behind the Open Source license is that the software to which it applies can be used free of charge. This means that it can be used for both private and commercial purposes. It can be modified and subsequently disseminated. However, before taking such steps, it is necessary to familiarize with the terms and conditions of the license. The license may provide that certain steps concerning free software are prohibited, or that the user must provide access to the source code developed using the Open Source on a free-license basis.

Remember that the use of source codes provided under an Open Source license may be excluded by an agreement with the customer. The ban on their use to create software to order may be straightforwardly stipulated in the license. It may also indirectly follow from other provisions, such as a statement confirming that you have the copyright to both the entire software and individual parts thereof.

KONTAKT

Tomasz Srokosz Partner, Katowice

E: tomasz.srokosz@pl.Andersen.com
T: +48 32 731 68 52
M: +48 512 286 226

Natalia Gaweł Advocate, Katowice

E: natalia.gawel@pl.Andersen.com
T: +48 32 731 68 50

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