IT law

IT LAW

Software Copyright

Few domains of intellectual property have given rise to as many concerns and misunderstandings as the question of software patentability. At P&TS, we follow very closely the evolution of the jurisprudence on this question which we have made into one of our favorite specialties.

Computer programs are protected without any formalities by copyright, in the same manner as works of art. Copyright however protects only the program’s expression (code, documentation, preparatory design material…), independently from its function. A program executing the same algorithm but implemented with a different series of instructions will thus generally not be considered an infringement of the copyright, unless it is a literal transcompilation (re-writing the program in a different computer language).

The legislation of several countries furthermore provides for copyright protection of flux diagrams underlying a program or for certain elements of the graphical interface of the program (data display, original icons, menu titles etc.).

Software is protected by copyright from the date of its conception, without any registration being necessary. In case of conflict, the onus of proving that the software was conceived prior to the infringer’s creation lies with the author. A strict management of the successive versions of the software will enable the author to prove down the line which parts of the code were conceived on what date, it is thus essential if it becomes necessary to defend against illegal copies. Using a timestamping service may be a practical solution to establish a definite date to the versions of a software application.

The conditions are often rather strict, and it is necessary to verify on a case by case basis with the assistance of a specialist which elements of a program are protected on which territory. Furthermore, it is critical to check that all the developers involved have transferred their rights on their contributions. Certain regulations provide an automatic transfer of the employees’ or contractors’ rights, but the situation depends on the applicable law. An external counsel supports you in the assessment of the legal risk of each situation, and to set up a suitable contractual framework if necessary (especially through the signature of a contract for the transfer of copyright).

Contact us for guidance in this matter and support for the drafting and review of your contracts of transfer and licences.

Patents for software

Most states accept nowadays the patentability of software and computer programs. The protection obtained is generally wider than that given by copyright since a patent can protect the function achieved by a software, independently from the code. For third parties, patents have the advantage of being searchable in order to determine the freedom to operate. In Europe, as in Switzerland, it is however necessary for the program to have a technical effect. The patentability is furthermore dependent on the specific wording of the claims.

The USA have adopted a more liberal approach and also grant patents for software implementing in fact business methods

Patents are not confined only to proprietary software; in fact, many programs distributed under open source licences are also protected by patents. These patents may even prove indispensable, in addition to copyright, to guarantee that the particular conditions of the open source licences are complied with.

Software patents are also not solely the preserve of leading software producers or multinationals; many SMEs as well as start-ups consider patents to be crucial to prevent their developments from being copied without compensation by companies better placed to distribute them quickly and on a large scale.

Licensing

As computer programs and their interfaces are protected by copyright, and, under certain conditions, might be protected by software patents, a licence is required to use them.

A licence is a contract, and as such must be carefully drafted to reflect the situation, flexible enough to foresee the future, while guaranteeing the rights of both licensor and licensee. Intellectual property Law requires specific drafting to ensure the full validity and effectiveness of licences. In terms of licensing, it is also possible to choose a free or open source licence, a standard contract subject to particular rules guaranteeing user’s freedom. This choice requires a detailed analysis, as the contract cannot be adapted and may conflict previous commitments.

The assistance of a consultant is important to ensure the proper drafting of a licence adapted to your situation, or on the contrary the use of a free or open source licence if it is considered relevant to your case. We can advise you on this matter.

Free and open source licenses

Any software project involves the use of pre-existing elements, e.g. system libraries. Without this reuse, it would be necessary to reinvent everything for each project, and application development would be too complex and time-consuming, with no guarantee of portability or interoperability.

Software components under open licence, free or open source, are an important vector for innovation and for limiting development and innovation costs. However, their uses are not “free”, and particular attention must be paid to the terms of the associated licences, whether for a use case or for distribution under an open licence. Indeed, using several components could lead to a conflict of licences, or be incompatible with commercial exclusivity due to contamination (obligation to redistribute part of the code under an open licence).

The assistance of a consultant allows the evaluation of the legal risks associated with a development project. If a problem is identified, such as a licence conflict or a risk of contamination, a change of architecture or a contractual framework may be suggested to overcome the difficulty. We can advise you on this matter for the success of your software projects.

IT Innovation

Law and innovation are often presented in conflict, “innovation versus law”. Indeed, innovation is pushing the limits of knowledge and goes beyond the border of law, which has patiently regulated the current situation. However, regulations are not so rigid, and the law is often able to adapt to innovation, particularly in the field of information technology. In order to do this, it is necessary to analyse the legislation potentially applicable to the scope of the innovation and to assess its potential application, as well as any formalities that may be necessary. E.g., a new communication application (messenger) could fall within the scope of the Telecommunications Act, require a specific data protection policy, or even a review with regard to the regulations on medical devices. If the innovation does indeed appear to be outside the regulatory framework, it will be appropriate to contact the authorities for advice on the regime to be followed. We can guide you through the legal and regulatory analysis of your innovation and through the according administrative steps.

Telecom

Telecommunications, or electronic communications, is a particularly regulated field. Both in terms of the functioning of the market, following a historical question, and for technical reasons: frequencies cannot be used by all without restriction due to the risk of interference making them unusable. The traditional activities of operators as well as new services (development of new applications, messengers, etc.) or products (in particular wireless products) require appropriate legal and regulatory advice to determine the rules to be followed and the formalities and authorisations to be obtained. We can provide guidance for your projects and contracts in the field of telecommunications.

Migration to the cloud

The offer of services on the cloud is growing ever more, we can take the trivial example of the services of Google Drive or Microsoft 365. Migrating your services to the cloud is a relevant choice to limit hosting costs and benefit from better scalability. Such a migration represents both a technical and legal challenges: the guarantees of the chosen cloud provider must be sufficient in relation to the commitments already made to the previous customers.

Any migration project must be accompanied by a due diligence to ensure a clear view of existing customer commitments. At the same time, a review of the regulatory constraints of the company’s activity must be carried out to ensure the legality of the new architecture. For example, certain activities do not allow hosting outside the national territory. The results of these analyses must then be compared with the contractual documents of the cloud provider. It will then be possible to decide whether this service is adequate, whether negotiations are necessary, or whether a mixed architecture between traditional server and cloud hosting is relevant.

We assist you in your cloud projects, in order to guide you and determine whether the technical choice is adequate, which contracts should be concluded or adapted for the success of your project.

Setting up services in the cloud

More and more companies are offering services based on cloud architecture (e.g. data hosting). Depending on the services, significant regulatory constraints may exist. For example, being a hosting provider is a special status, regulated at international and regional level, and subject to various obligations. Depending on the service and the applicable law, the company may have to be declared as an electronic communications operator. Finally, depending on the security systems envisaged, particularly in the case of the use of cryptography, export control rules may be applicable.

We assist you in your service projects, to help you determine the regulatory framework applicable to your solution, and to guide you in the event of any formalities to be carried out.

GDPR and DPA compliance

The national data protection law has been recently revised, the revised law is close to the GDPR (General Data Protection Regulation N°. 2016/679 of the European Union). This would require Swiss companies outside the scope of the GDPR to comply with it as well. We can assist you in regulatory compliance, guide you in the adoption of an effective governance framework, and in the review and negotiation of your DPAs with your customers and suppliers (Data Processing Agreements).

Although adopted in 2016 and entered into force in 2018, the GDPR continues to evolve following the first court decisions and opinions of the authorities taken in recent years. The GDPR affects any Swiss company offering services to the European Union. Apart from this application, it is relevant to comply with the GDPR as this also allows compliance with other less binding regional texts.

However, the GDPR compliance as assessed a few years ago may now be outdated due to new courts decisions, and a regular review of activities and services processing personal data is advisable. On a practical level, the DPA (Data Processing Agreement) is the crucial tool for the proper application of the GDPR, ensuring a chain of obligations from the supplier to the end user. It is critical to ensure that suppliers give sufficient guarantees to their customers, so that they can themselves make sufficient commitments to their own users. An external counsel will be an effective support in the review or negotiation of a DPA.

We support you in your questions about data protection as well as the review and negotiation of your DPAs.

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