Copyright on Software

Software is an essential part of our current information society. Copyright on software is therefore very important. There are various things that may be copyrighted, such as the software, SaaS, on-premise, source code, firmware and computer programs in any form. This may, however, be different in the case of embedded software, where the functional requirements and preconditions are often very strict. Moreover, ideas are not protected by copyright either: only the concrete implementation of a function can enjoy protection. Copyright on software is a form of intellectual property. 

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The source code and/or object code of software may be copyrighted. Software is only protected by copyright if it has its own original character and bears the maker’s personal stamp. This is, however,  quickly the case. Nevertheless, the software must not be of a purely technical or functional nature to be protected by copyright.

The software should usually not be used without the creator’s permission. The owner has the right to take action against “publication” and “reproduction” of his work. Publishing or copying software is then prohibited and violates intellectual property rights. The other party is liable if he or she infringes these software copyrights. Normal use, such as copying from the hard disk to the RAM, making a backup or performing maintenance is permitted by law and does not infringe any copyright on the software, this is provided you have a license.

Contractual permission may also be subject to certain conditions. This is possible in so-called license conditions, terms of use, EULA or license agreements. Open – source licenses are in fact nothing more than the permission of the copyright holder to use the software (free) under certain conditions.

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As a customer of software, you often depend on the software owner due to copyright protection (this is also called a “vendor lock-in”). If you want to continue with a third party, you will have to transfer the copyrights or demand issuing of the source code. A supplier may be obliged to issue the source code when it concerns custom software. This is often different from standard software, due to the commercial interests of the owner.

Thus, the use of unlicensed software can also be copyright infringement. The infringer can then be held liable for this.

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In the event of a copyright conflict, lawyers specializing in intellectual property rights can assist. When it comes specifically to software or other ICT elements, it is wise to hire a lawyer who also has expertise in this field. 

Are you a Rightholder?

As a rightholder of software, you can, therefore, act against unwanted use. It is up to you whether you want to take steps and which ones. You can, for example, kindly communicate with the infringer to cease the infringement, especially if the infringer does not commit the violation intentionally. A written request is often sufficient. However, if the infringement is committed deliberately, or if a kind request does not make sense, the advice is to take immediate legal action.

Rapid action is often required to prevent further infringement. You can order to bring the infringement to an end, and you can claim damages. Issue and destruction of copies are also possible options.

It is advisable to claim an injunction in interim relief proceedings, possibly preceded by a seizure. Another option is to submit a claim for damages. With the attachment (seizure), you can secure proof and/or guarantee payment. In terms of damages, you can claim the income you missed, such as ordinary license fees, and the attorney fees paid.

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5 Tips how to Claim your Right

1. Assess whether you are entitled to claim your right: Does the software have copyright protection and are you the owner? And do you have enough evidence that an infringement is being committed? If so, take immediate action. If not, try to seize evidence so you can be sure.

2. Is it possible to kindly communicate with the infringer to request an end of the infringement, or is it better to take immediate action?

3. Hire a lawyer to write a good letter stating that – and why – you are the copyright holder and why infringement is being committed. Take legal exceptions into account. Make a claim for damages, which you can base on the license fees you missed.

4. If necessary, make a precautionary order, so that you can be sure that the infringer can compensate for the damage. With such a seizure, you also quickly ensure that the infringer corresponds.

5. File a lawsuit. You can quickly get a preliminary judgment from the judge that the infringement should be stopped, under sentence of a penalty. You can also claim compensation and you can request a full court order for costs so that you will be fully reimbursed for the lawyer’s fees.

Are you being addressed as an Infringer?

If you are being sued for copyright infringement of software, please note the following points.

Receiving such a letter does not necessarily mean that you are obliged to pay damages or to stop using the software. For example, you may have a legal right to use the software, or the complainant may not even be the copyright holder. Consider, for example, freely available open-source software, other third-party software, or elements that do not enjoy copyright protection due to technical preconditions. The copyright holder must demonstrate that he or she is a rightholder. Moreover, the demonstration of the damage is necessary. If he or she does not do this, one can be held accountable. Moreover, it is also not an infringement to adopt an idea in itself.

If you really have committed an infringement, it is wise to stop the infringement. Then determine whether you have an interest in future use or not. Perhaps possible future use can be discussed with the other party. 

1. Assess whether the alleged copyright holder is really correct. Does the work enjoy copyright protection, is he or she the copyright holder and is there an infringement committed? Is it perhaps a question of a (legal) exception, or a licensing condition that is not permissible? And what about proof? Is this lacking? Defend yourself immediately!

2. Never sign a letter from a lawyer confirming that you will cease the infringement and forfeit a fine.

3. Assess whether it is possible to negotiate with the copyright holder, or whether it is possible to stop the infringement. A settlement is often cheaper than legal proceedings. In particular, take into account the costs of legal proceedings. If you are unsuccessful, you will pay the full costs of the other party. The other way around, of course, the same applies: if you are correct in claiming your legal right, the other party will have to reimburse your costs.

4. Have a lawyer prepare a valid letter, in which you indicate that you are defending yourself. Sometimes the other party remains silent afterwards and it turns out that it was only a so-called “barking letter”. Barking dogs do not (usually) bite. A lawyer can advise you on your legal position.

5. Defend yourself well in a lawsuit. With proper preparation, there is often much protection against a claim. Depending on the legal preparation, the other party can often be (fully) limited in their claims. You can fully recover the attorney’s fees for your defence from the plaintiff if you are successful. Keep in mind that sometimes an expert needs to be added because ICT matters can often be technically complex.

Contact

LAWFOX’s lawyers are happy to assist you. We can prevent legal proceedings for your company or organization, or take legal action if required. We have a team available for you that is glad to help with all your questions about copyright on software.

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