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Author
Marianna Boykova

Patent Attorney

19 February 2019

The protection of programmes for electronic computing machines in the world

A programme for an electronic computing machine is a special kind of subject matter of intellectual property that has obtained legal protection relatively recently. For the first time ever in the world, the programme for an electronic computing machine was registered as the subject matter of intellectual property in 1961 in the USA.  In 1980, the computer programme was included in the list of the copyright subject matters in the legislation of the USA, namely in the Copyright Act of 1976. Currently, there are three tools for legal protection of programmes for electronic computing machines in the world: the copyright, the patent law and the legislation on a commercial secret. 

Let us consider each kind of protection separately.

The protection of the programme for an electronic computing machine as the subject matter of the copyright protection is the most popular kind of protection. From the point of view of the copyright protection of the leading countries of the world, such as the USA, Japan, the countries of the European Union, the Russian Federation, the programme for an electronic computing machine is equated with literary works due to the fact that it is expressed in the form of a source programme code, i.e. the text written in any programming language. All basic copyright provisions on the copyright protection regulated by the international conventions and treaties, such as the Geneva Convention, the Berne Convention, shall be applied to programmes for electronic computing machines as to the copyright subject matters: legal protection of programmes for electronic computing machines shall arise at the moment of their creation; the copyright shall be applied to any programmes for electronic computing machines, both marketed and not marketed, presented in an objective form, regardless of their tangible medium, purpose or advantage; the right to the programme shall arise directly from the author as the person who has made a creative contribution to its creation, while the author can not refuse from his right of authorship; legal protection shall be applied to all kinds of programmes for electronic computing machines (including to operating systems and software systems), which can be expressed in any programming language and in any form, including a source text and an object code; the registration of the programme for an electronic computing machine shall be optional.

Like all literary works, the programme for an electronic computing machine is protected across the whole world in accordance with the Berne Convention. The Berne Convention “On Protection of Literary and Artistic Works” 1886 (as amended of 1971), which is the oldest international treaty, forms the foundation of the international system of the copyright protection, which provides for legal protection of programmes for electronic computing machines at the level of literary works. The purpose of the Berne Convention is to provide a more efficient and uniform way of protecting the rights of authors to their literary or artistic works. Following the principles laid down by the Berne Convention, the programme will be protected if it is original in the sense that it is the result of intellectual activity of the author himself. No other criteria for its protectability shall be established.

However, the Berne Convention does not regulate in any way or establish the exclusive right of the author to the programme for an electronic computing machine.

To confirm the exclusive rights, the national registration of the programme for an electronic computing machine within the volume of the programme source code is provided in a number of countries, for example, in the USA and the Russian Federation. During the registration, a certificate of registration shall be issued for the programme for an electronic computing machine, which confirms the exclusive (property) right to the programme.

It should be also noted that the certificate for the programme for an electronic computing machine in the USA is issued by the Copyright Office located in the Library of Congress. Registering the copyright to the programme for an electronic computing machine at the Copyright Office of the USA is the most popular and universal way to obtain the international protection to the programme for an electronic computing machine, due to the fact that the certificate issued by the Office is the generally accepted world analogue of the international copyright registration.

Now let us consider the protection of the programme for an electronic computing machine from the point of view of the patent legislation by the example of the Russian Federation.

In accordance with the patent legislation of the Russian Federation, a product (in particular, a device, a substance, the strain of a microorganism, the culture of plant or animal cells) or a method (a process of performing actions over a material object using material means) including the use of the product or the method in accordance with a specific purpose is subject to be protected. However, an attempt to protect the programme for an electronic computing machine as the patent right subject matter is a fairly contradictory way of protection.

In many countries, such as the Russian Federation, the countries of the European Union, Japan, programmes for electronic computing machines can not be patented by virtue of express reference by the law. To be able to obtain a patent for any solution, it should meet three patentability criteria, i.e. it must be new (i.e. unknown in the prior art); it must have an inventive step (this criterion is also called the requirement of unobviousness – for a specialist this invention is not obvious from the current state of art); it must be industrially applicable – the software can be used in industry, agriculture, health care, other sectors of the economic or social sphere.

Essentially, the programme for an electronic computing machine is an algorithm, i.e. the sequence of certain actions. Therefore, despite the existence of a prohibition on patenting the programme for an electronic computing machine as such, it is nevertheless possible to obtain a patent for an invention having described the whole programme as the set of material actions performed over a material object.

At the same time, it is possible to distinguish the USA against the general background of the countries as the country in which the national patent legislation permits officially the protection of the software as an invention. The patentability criteria “novelty,” “inventive step” and “industrial applicability” shall be applicable to the software the same way as to all inventions claimed in the USA.

And finally, let us consider the protection of the programme for an electronic computing machine as the subject matter of a commercial secret.

Both the national laws and the international law contain the norms on a commercial secret. The commercial secret is defined as the information (including formulas, models, programmes, mechanisms, methods, technologies), which has independent actual or potential economic value, it is not available to other persons who could gain economic benefits by using or disclosing it, and in respect of which the measures to protect its secrets have been undertaken. For the software to constitute a commercial secret, certain conditions must be observed: the software source code should not be known to a wide circle of persons; it must have economic value; it must be protected as a commercial secret, i.e. appropriate measures should be undertaken to protect it as the information constituting a commercial secret.

Having considered various kinds of protection of the programme for an electronic computing machine, it is possible to conclude that the modern system does not have a unified tool of the software protection that would allow obtaining the integrated and comprehensive protection of this result of intellectual activity.

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