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Legal Issues and Software

Software and the Law

Software is everywhere, from the obvious operating systems and apps that we use every day to the less obvious software that controls numerous small components of devices and machines that are commonplace yet not necessarily associated with computers at all.

The definition of “software” or “computer program” in law is far from clear. The European Software Directive, which was implemented into UK law in 1992, defines a computer program as including:

“programs in any form, including those which are incorporated into hardware [and]… preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage.”

This definition, however, is not particularly helpful. For example, it does not elucidate the different types of IP rights that subsist within software.

The WIPO (World Intellectual Property Organisation) Model Provisions on the Protection of Computer Software are a little more helpful:

“[a] set of instructions capable, when incorporated in a machine readable medium, of causing a machine having information processing capabilities to indicate, perform or achieve a particular function, task or result.”

While worded in typically legal terms, this definition is more familiar to those who work with and use software.

Software is complex by nature, not only from a technical perspective, but also from a legal one. A single software application can be constructed from multiple sources, sometimes from multiple developers and owners. Software will also be protected by intellectual property law, meaning that any one piece of software can end up being a complex web of overlapping and interdependent IP.

Such complex applications go beyond the scope of the information presented here, but it is an important consideration whether software is being developed, sourced, or supplied. The ownership of software can become complicated quickly, and associated legal documentation such as Software Development Agreements and Software Licences must take full account of all rights and parties involved.

The information in this category looks at a number of legal aspects of software, including an overview of intellectual property in software, information on software licensing, and software escrow – an important issue particularly in high-value B2B software licensing scenarios. Further topics including software development will be added soon.

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