When entering into agreements with subcontractors, it is essential to ensure precise contractual provisions to avoid issues concerning the ownership of a computer program or its further use. Particularly in the era of artificial intelligence and rapid technological advancement, copyright protection becomes a significant challenge.
What is protected by copyright law?
Pursuant to the Act on Copyright and Related Rights, a work is protected – meaning any manifestation of creative activity of an individual nature, regardless of its value, purpose, or mode of expression. In the IT sector, the following may be subject to protection:
- Source code
- Object code
- Project documentation
Protection does not extend to:
- Ideas, concepts, algorithms
- Methods of operation or procedures
Works are protected automatically upon their creation and fixation. There is no requirement to register or notify any authority about this fact. According to the case law of the Supreme Court, copyright protection covers not the subject matter itself (the content or idea of a work) but its concretization – its individualization and the granting of shape or form, even if incomplete. Fixation of a work is defined as the act of giving a work a form that makes it accessible to third parties.
Copyright in computer programs
Article 74(1) of the Act on Copyright and Related Rights provides that computer programs are protected as literary works unless otherwise specified by the Act.
Who holds the rights to the program?
As a rule, the copyright to a computer program belongs to its creator. This means that, by default, a programmer holds full rights to the software they create.
Therefore, if you intend to acquire full rights to the code, you must conclude an agreement transferring the economic copyrights. More information on this topic can be found in our separate article:
https://www.krgroup.pl/umowa-o-przeniesienie-autorskich-praw-majatkowych-co-powinna-zawierac/
Within the catalogue of moral rights belonging to the creator of a computer program, only the following are included:
- the right of authorship of the work, and
- the right to have the work marked with their name or pseudonym, or to make it available anonymously.
Scope of protection
Copyright law covers all forms of expression of the program, including:
- source and object code,
- project documentation (provided it meets the criteria of a work),
- the graphical user interface (if it has an individual character).
According to the judgment of the Court of Justice of the European Union in case C-406/10 – SAS Institute:
“The subject matter of protection of Directive 91/250 includes the forms of expression of a computer program, as well as the preparatory design work leading to the development of such a program or its reproduction (...).”
A computer program will be protected under copyright law provided it meets the general conditions set out in Article 1(1) of the Act, i.e., it is a manifestation of creative activity of an individual nature and has been fixed.
Economic copyrights to a computer program include:
- the permanent or temporary reproduction of a computer program in whole or in part,
- translation, adaptation, arrangement, or any other alteration of a computer program,
- distribution, including lending or renting, of the computer program or its copies.
Can you use code or a computer program for personal use?
In certain cases, yes. Specifically:
- a backup copy can be made if it is necessary to use the computer program,
- it is permissible to observe, study, and test the program to determine its underlying ideas and principles,
- reproduction of the code or translation of its form is allowed if it is necessary to obtain the information required to achieve interoperability of an independently created computer program with other computer programs, provided the conditions specified in the Act are met.
Before making any decisions in this regard, consult your situation with a legal professional to avoid the risk of legal liability for unauthorized activities. Infringement of copyrights to software may result in both civil and criminal liability.
How to secure rights in a contract with a programmer?
When concluding an agreement with a programmer, particular attention should be paid to:
- whether there is a transfer of economic copyrights or only a license being granted.
If you are wondering about the difference between these two agreements, we encourage you to read our separate article:
https://www.krgroup.pl/jaka-jest-roznica-pomiedzy-umowa-o-przeniesienie-autorskich-praw-majatkowych-a-umowa-licencyjna/ - the scope of transferred rights – the agreement should include the transfer of source code, technical documentation, and other elements particularly important to the client,
- fields of exploitation – defining how the program can be used,
- potential limitations.
Equally important is the type of contract under which the programmer creates the computer program.
If a programmer is employed under an employment contract, the economic copyrights to the software created as part of their professional duties automatically belong to the employer, unless otherwise agreed in the contract (Article 74(3) of the Act on Copyright and Related Rights).
It is essential that the programmer’s job specifically involves software development; otherwise, the transfer of economic copyrights should be addressed separately in the agreement.
In the case of a cooperation agreement (contract for services), the rights to the computer program by default remain with the programmer unless the agreement stipulates their transfer.
License agreement – key issues
A license agreement allows for the use of a computer program under specified conditions but does not transfer ownership of it. It is advisable to regulate, among other things:
- the type of license (exclusive or non-exclusive),
- whether the licensee is entitled to grant sublicenses,
- the moment the license is granted (e.g., upon installation of the program),
- fields of exploitation,
- whether the licensee can modify the software,
- remuneration for the license,
- the territorial scope of the software’s use,
- the license duration and termination notice period.
If the agreement does not specify the license duration, it is deemed to last for five years by default, which in practice may be insufficient (Article 66(1) of the Act on Copyright and Related Rights).
Proper regulation of copyrights in IT contracts is crucial to protecting the interests of both creators and businesses using the software. It is important to ensure precise provisions regarding the transfer of rights, licensing, and exploitation of computer programs to avoid future legal disputes.
