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Open Science for Arts, Design and Music/Guidelines/Software

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Software

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Even if a software is not an immaterial good[1], on the international level, a computer program is protected by copyright when the source code written by a person is considered a literary and artistic work within the meaning of article 2 of the Berne Conventionfor the Protection of Literary and Artistic Works[2], more specifically, the code must have the required individual character. In Europe, software are protected by the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs. On the Swiss level, a computer program may be protected by copyright as set forth in art. 2 para 3 CopA. However, it is possible for a computer program to be (also) patentable, if the invention and the software in it produce a technical effect. As for any kind of work, as soon as the computer program is created and the individual character can be recognized, it is automatically protected by copyright.

There are different interpretations and controversies about what is considered being a software protected by copyright; mainly, the Swiss doctrine takes as a reference the Copyright Act of the USA[3], whose §101 states that "A computer program is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result"[4]. Because copyright only protects an expression, not the idea itself, copyright protects the written expression of the computer program (source and object code), but not the idea behind, thus not the output expected by the machine. Therefore, several software may be written differently and in the meanwhile have the same output, without infringing one another's copyright.

A computer program can be developed upon a traditional model, according to which its exclusive right is protected by a proprietary license so that a user must pay a fee to be able to use the computer program. Otherwise, a computer program can be licensed under an open license, permitting its reuse and adaptations. Hence, software can be licensed under a Creative Commons license or under a Free and Open Source Software (FOSS) license, the latter being more suitable for computer programs, granting users "freedom to run, copy, distribute, study, change and improve the software"[5].

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Notes

  1. ↑ Willi Egloff, Le nouveau droit d'auteur, Commentaire de la loi fédérale sur le droit d'auteur et les droits voisins, URG 2, Stämpfli Editions, 2021
  2. ↑ art. 4 WIPO Copyright Treaty
  3. ↑ François Dessemontet, in: CoRo, ad art. 2 LDA, n°57
  4. ↑ U.S. Copyright Act https://www.copyright.gov/title17/title17.pdf
  5. ↑ Free Software Foundation
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