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Many legal issues related to the creation and distribution of computer programmes arise under the copyright law, and, like any work, a computer programme can be a work under that law. The problem occurs when we try to define what a computer programme actually is. Is it just a programming layer? Or is a user interface also included?

The problem of computer programmes appears and will continue to do so more and more often. Whether it’s a washing machine, TV, tablet, smartphone or computer, computer programmes are already in almost every device. Therefore, when I’m writing about a computer programme, the same rules will also apply to mobile applications and so on.

For the purposes of this article, I will simplify definitions and meanings of certain words, e.g. I will use the term “ordinary work” to distinguish a work, e.g. a literary or photographic work, from a work that is a computer programme, which is regulated separately in the Act on Copyright and Related Rights. I will also use the term “software” for all elements of a computer programme or mobile application together in the common sense of the word.

What is a computer programme?

From the technical point of view, a computer programme will be expressed in the form of a verbal sequence of instructions/commands, charactersfor a computer, cell phone, etc., which will lead to modification of its state, i.e by triggering some kind of action.

Computer programmes are not defined by the legislator. Like in the case of any other piece of work, you can assume that a computer programme is a work. Of course, this statement depends on whether the computer programme complies with the definition of a work contained in Article 1 of the Act on Copyright and Related Rights (Copyright Law).

A work is any manifestation of creative activity individual in nature, established in any form, regardless of its value, purpose and manner of expression – Article 1 of the Copyright Law.

Computer programmes have been regulated separately from other works. As stated by the legislator in Article 74 of the Copyright Law, computer programmes are protectedas literary works as long as they are works under the above provision. It is also worth keeping in mind that not every computer programme (or any other piece of work) will be a work—even if your agreement will include a provision which recognises it as a work.

There is no doubt that computer software (including mobile applications) may be the subject of the intellectual property right—especially due to the numerous elements of which it is composed and which cannot be ruled out when taking the whole software into account.

The legal classification of software is essential to determine who owns the copyright to the whole software along with its individual elements.

Since the elements of a computer programme may be of creative nature, each of the creators of these elements may be entitled to copyright.

Copyright – computer programme vs user interface

Computer software, as commonly understood, consists not only of a source code, but also a graphic design of the programme or application. Therefore, to make it a bit clearer, let’s divide computer software into these two components:

  • a programming layer (a source code, instructions—as a form of expression);
  • a graphic layer (a graphical user interface, i.e. GUI).

Interestingly, the software’s graphical interface, i.e. the graphical layer with which most users identify the software (or a mobile application, etc.), is not a computer programme in accordance with the copyright law. The graphic layer is a separate element from the computer programme and is protected under separate rules—i.e. according to general regulations concerning a work pursuant to the copyright law.

This is also confirmed by the Court of Justice of the EU (decision of 22 December 2010, C-393/09), which stated in its directive that “the graphical user interface is not a form of expression of a computer programme (…). Nevertheless, such an interface can be protected by copyright as a work if that interface is its author’s own intellectual creation (…)”.

According to the copyright law, only a programming layer, the way it’s expressed in the form of a source or object code, to be precise, will be a computer programme. In some cases, it is also a block diagram, project documentation or other brief of a computer programme, if it is possible to write a programme in the future on their basis. This is important for drawing up copyright agreements between developers / software houses and their clients.

Agreement for the development of a computer programme

Since we explained what computer programmes are, what a user interface is and how we should classify all that, it’s time to look at the practical aspect.

As far as agreements are concerned, you can conclude any agreement that you would conclude in the case of ordinary works. The fact that we are now talking about a work of a different kind, regulated separately from other works, does not constitute an obstacle to the conclusion of a similar agreement.

In the case of a computer programme, you can both transfer the author’s economic rights but you can also grant licences. Remember to always transfer the author’s economic rights under a written agreement.

The issue of the fields of exploitation of a computer programmeremains problematic, as they have been specified separately from other works, i.e. user interface. I have a way to put it into practice and connect these two differently regulated works, but I will write about it in another article.

An interesting fact: a website is a computer programme

If you are a web developer and your work focuses on back-end in particular, you must keep in mind that the code created in PHP can be considered a computer programme under copyright law. This is confirmed in the doctrine, so bear that in mind—if you are a software house, a creative agency or a person hiring a website developer, it is worth consulting the matters with a lawyer and regulating the copyright of the computer programme, which might be the website.

If you fail to do so, you will need to interpret the provisions of the agreement—both in terms of the computer programme and other elements of the entire software, such as the aforementioned graphical interface.

To sum up, a computer programme is a work separate from a user interface pursuant to copyright law. A computer programme will be only the programming layer of the entire software. Notwithstanding the foregoing, you can conclude a single agreement with your contractor for the development of a computer programme and the transfer of author’s economic rights (or a licence), in which you will regulate matters concerning both the computer programme and its user interface. Remember to regulate these matters separately. If you skip the information concerning the interface, the agreement will not be complete and additional interpretation will be required.

Arkadiusz Szczudło

Arkadiusz Szczudło

I am a lawyer at Snażyk Korol Mordaka sp.k. I help entrepreneurs and freelancers from the creative industry; fashion and newtech in particular. I successfully run blogs and numerous side projects for them (…) You can write to me at a.szczudlo@skmlegal.pl.

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