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Intellectual Property Rights in Software

Intellectual Property Rights in Software

Copyright protection extends to the particular form in which an idea is expressed. In the case of software, copyright law would protect the source and object code, as well as certain unique original elements of the user interface.

Copyright protection of software is regulated in Belgium under the Software Act of 30 June 1994. This law transposes the Council Directive of 14 May 1991 on the Legal Protection of computer programs (91/250/EEC) into Belgian national law (For a history of software protection in Belgium, see Keustermans, J., , in International Computer Law (Matthew Bender & Company, December 2008), 7-29) Computer programs (including the preparatory material) are protected by copyright and are equivalent to literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works.

According to article 2 of the Software Act only original computer programs benefit copyright protection. Computer programs that are not original don’t benefit copyright protection. The ideas and principles behind computer programs or technical interfaces are explicitly denied copyright protection.Copyright protection arises automatically upon the creation of an original work of authorship. There is no need to “apply” for a copyright or register the copyrighted work in order for protection to exist. In the case of software created by an employee in the course of his or her employment, the resulting “work made for hire” would be protected by copyright law for seventy-five years from publication.

The originality requirement means that the computer program needs to be an own intellectual creation of the author. No other criteria may be used to determine whether the program can be subject to copyright protection (Copyright Act, Art. 2. Certain courts decided that registration of a computer program with the US Copyright Office is an indication of its originality, e.g., Pres. Liège, August 30, 1994, Computerr. 1994, p. 63.). There is no legal definition of the originality requirement. Legal doctrine established that the amount of work involved is not relevant. A computer program is only deemed to be the own intellectual creation of the author if the personal stamp of the author is visible in the work. Therefore it is required, but not sufficient, that the author has freedom of choice when he creates his work. If the author has no choice but following a path that leads to one single outcome, no originality is involved.

Thus, merely registering or copying the reality or executing a functional routine is not considered to be an original intellectual activity in the sense of the Copyright Act. Where legal doctrine stresses the need that the personal contribution of the author must be sufficiently intensive (“Le droit d’auteur ne devrait s’appliquer qu’à des créations qui révèlent un niveau d’inventivité personnelle d’une certain intensité”( A., BERENBOOM, Le nouveau droit d’auteur et les droits voisins, Brussels, Larcier, 2008, p. 53 )) , they agree that the threshold as applied by the courts is fairly low (J., CORBET, APR, Antwerp, E. Story-Scientia, 1997, p. 27 and F., DE VISSCHER and B., MICHAUX, Précis du droit d’auteur et des droits voisins, Bruylant, Brussels, 2000, p. 18) .

2017-04-26T02:00:43+00:00December 21st, 2015|In Belgium, Non classé, We like|