Software can be copyrighted

RENTSCH
PARTNER
Attorneys at Law and
Patent attorneys

The term "software" is not used in the Swiss Copyright Act (URG). Basically, according to the prevailing teaching, the term "software" represents a generic term under which both the computer program and the development and user documentation fall. In the case of computer programs, copyright protection is paramount. According to the URG, computer programs are considered works within the meaning of the law (cf. Art. 2 Para. 3 URG), the term "computer program" in turn summarizing the source and object code of a program and its development documentation. In the majority opinion, the user documentation (user manual) does not belong under the term "computer program". If the legal requirements are met, this can in turn enjoy copyright protection as a linguistic work (cf. Art. 2 Para. 2 lit. a CopA).

The copyright arises and exists informally. So no registration is necessary.

The URG and the Copyright Ordinance (URV) know the special provisions for computer programs listed below:

  • Exclusive rental right (Art. 10 Para. 3 CopA; Art. 13 Para. 4 CopA);
  • Right to use (Art. 12 para. 2 URG; Art. 17 URV);
  • Right to resell (Art. 12 Para. 2 CopA);
  • Rights to programs in the employment relationship (Art. 17 CopA);
  • No use for personal use (Art. 19 Para. 4 CopA);
  • Right to decryption with regard to interfaces (Art. 21 URG);
  • Right to make a backup copy (Art. 24 Para. 2 CopA);
  • Term of protection reduced to 50 years (Art. 29 Para. 2 lit. A URG).

Software patents vs. computer-implemented inventions

Software and computer programs are protected by copyright. Copyright protects the specific implementation, i.e. the program code, but not a procedure on which a computer program is based. Without violating the copyright, it is possible to implement the same idea in another computer program or to reprogram software with a certain functionality.

So it would be obvious to protect software by means of patents. Patents serve to protect technical inventions, i.e. new and unobvious solutions to technical problems. Basically, however, there are computer programs in Europe as such excluded from patent protection. Pure word processing programs, for example, do not solve any technical problem and are therefore not patentable. The situation is different, however, when computer programs are used to implement a technical invention. Such "computer-implemented inventions" are patentable under certain circumstances.