Protecting Your Ownership Rights in Software

October 13, 2013, 10:01 PM

Any company engaged in the business of developing and licensing software should give due consideration to doing everything it can to protect this valuable asset. Step one is to assure that everyone involved in the creation of the software has properly transferred all of his or her rights in it to the company. Generally it is not enough just to assume that because the company paid a programmer to write code the result is a work for hire that automatically belongs to the company. The safest course is to have a written assignment of all copyright and other rights in the work product of each and every individual involved in the process.

Step two is a considered and informed decision as to whether to protect the software under trade secret, patent or copyright laws. Under most circumstances source code should always be treated as trade secret information that is only disclosed on a need to know basis within the company, and subject to the strictest of confidentiality and nondisclosure agreements if it is disclosed to anyone outside the company. Written agreements with employees relating to confidentiality of company information including all source code are also advisable.

While patent protection may be available for some software concepts or developments, it can be prohibitively expensive and difficult to obtain for the uninitiated or smaller companies with limited resources. This leaves copyright as the primary avenue to legal protection for most software. Copyright ownership in software and or any the other original work of authorship accrues automatically under the law when the work is fixed in any tangible medium of expression. However the right to legally enforce the copyright is not available unless and until it is registered with the U.S. Copyright Office.

Many software companies forego copyright registration of their products because copyright registrations generally require deposits of the material to be registered which, in the case of computer software, would include at least portions of the source code for a registration with full benefits of the law. Nonetheless, the pros and cons of registering your copyright in software should be carefully considered, especially if circumstances could arise where your source code might need to be shared with a licensee or other third party. --Robert E. Smartschan