In tech hubs from London’s Silicon Roundabout to Barcelona, IT entrepreneurs get involved in tech startups to create appealing new software to accompany people in every aspect of their lives. Aphaia’s blog editor Vasiliki Antoniadou explores how one’s software startup intellectual property can be protected: by means of copyright, patent and trade secrets.
Copyright is the most fundamental right for the software industry. Source and object codes are protected automatically upon their creation similar to literary works via copyright. Originality is the basic requirement for such protection. In other words, the work should not have been copied. If this criterion is fulfilled no registration, public disclosure or payment of fees is required. However, in the event of a dispute, a record proving the author and the date of creation might be helpful.
Apart from the easy and expenses-free acquisition of copyright, its duration is another positive aspect. Copyright protection extends to the life of the author plus at least 50 years after his death. During this time, it can be licensed, assigned, used as a collateral or mortgage just like any other property asset. As a negative right, it gives the power to the owner to stop others from copying, renting, issuing copies to the public, communicating the work to the public or making any adaptations of the work.
Notably, ideas are not protected by copyright. It is the expressions of ideas that constitute the scope of the mighty Intellectual Property right.
To make the most out of the copyright, it is of paramount importance for a startup to be able to demonstrate a clear copyright line of its original software starting from the author as its founder or its employee. That way the startup secures the rights that are most valuable for its maintenance and existence, and consequently is more attractive to potential investors, partners or large tech companies interested in merger and acquisition.
In many jurisdictions, including the European Union, it is a general rule that software is not patentable. The exception to the rule refers to the inventions that are implemented by a computer program, but that have a technical character. In any event, the patentability requirements of novelty, inventive step and industrial application must be satisfied.
The price paid for the award of a powerful monopoly is the disclosure of the invention and, compared to copyright, a shorter duration of twenty years. Additionally, the costs of patent registration are considerably high.
Since on the one hand the copyright for obvious reasons excludes the protection of ideas and on the other hand the acquisition and maintenance of patents is challenging and costly plus the disclosure of the invention is required, trade secrets might sometimes be a suitable IP tool for a tech startup. Trade secrets are protected as long as they are kept secret and reasonable steps have been taken for them to remain secrets (e.g. the Coca Cola recipe).
In the tech world the algorithm (or architecture) of a computer program is often a trade secret. Nonetheless, copyrightable and patentable works may be treated as trade secrets in order for them to enjoy indefinite protection and minimise the risk of being misappropriated or reverse engineered.
For the trade secrets to be kept secret, a confidentiality business strategy is recommended. It may comprise confidentiality clauses in employment contracts, non-disclosure agreements with third parties, not exposing the software in open source, and adopting confidentiality policies.