Articles

Copyright on contracted software products

22 May 2003 (Invest Romania)

Usually intended to be used by producers as comprehensive “safeguard measure” under commercial agreements, the formula all intellectual property rights reserved does not necessarily meet the requirements of protection when it comes to software products.

Under the process of creation and exploitation of software, the copyright norms are to applicable, bottom line being here that their applicability is not by far uniform.

Apart from the current concerns of ensuring copyright protection by means of license agreements we would emphasize the case of the industrialized software creation. The so-called “contracted software product” it appears to be an event that is not only interesting, but whose clarification is becoming more and more of use.

Obvious is the fact that software products are nowadays created, not only for the joy of invention but usually for an economic purpose, following a pre-arranged engagement and in order to meet the specific needs of a certain contractor. Such software products are deemed to be “contracted”, provided that they have been ordered by a certain beneficiary, which is also to finance their creation and production.

The Romanian Copyright Law no. 8/1996 in force today protects copyright of a software product in favour of its author, who has registered its artifact in the Software Product Register, regardless if the respective product was created based on an explicit order and for the use of a third party whose financial means were essential for the development of the creation.

Nevertheless, when complex software is contracted, it requires various products that are usually subcontracted for creation. In such case, we are facing a “joint creation”, whose copyright is considered by Art. 6 of the Copyright Law to be protected in favour of the individual or legal person at whose initiative, under whose responsibility and name the “joint creation” was developed.

The only method in which a subcontractor of a software product is able to protect its own copyright is to insert a specific clause within its agreement with the contractor that shall expressly state that the copyright of such product is recognized in favour of the subcontractor. Otherwise, if lacking such explicit provision the subcontractor shall never be able to register its copyright and gain profit from its benefits.

Given the above, we would strongly recommend that all the makers of software that design a product for the particular use of a third party financier to protect their copyright related interests by including an unequivocal clause in this respect within the arrangement with the software product beneficiary, even if it were only for the sake of fairness.