Software intellectual property: how to mitigate risk and protect your business

Every country has its own IP laws, and IP protection for software in the UK has continued to develop over time. The framework for software IP protection, however, wasn't always as robust as it is today. This article delves into the various types of IP rights that can legally protect software, addresses the consequences of unauthorised software IP infringement, and provides tips from tech law experts for risk mitigation and securing your software IP.

What is software?

In the intellectual property world, software is a set of instructions that are written in a way that a computer or other device can understand, which performs a task or achieves a particular function or result. Software that can be protected by intellectual property is the original and innovative element that is embedded in computer programmes or applications, such as code, algorithms or databases. This is also referred to as “software intellectual property”.

Before we delve into our legal experts’ top tips to protect your software intellectual property, let’s go back to basics of the various forms of intellectual property that can protect software creations.

Types of IP that can protect software

Intellectual property rights are the legal rights given to creators of original works and innovative creations. Most technologies can be protected by some form of intellectual property rights. Software intellectual property will typically be protected by:

Copyright

• Copyright is an automatic form of software intellectual property protection that arises as soon as an original literary, dramatic, musical, or artistic work, like the source code of the software, is created.

• In the UK, copyright subsists automatically in original works, so there is no need to register copyright - nor is there a copyright register where you can search for other protected copyright works.

• Copyright protects the code itself, not the ideas within it - if you want to protect the ideas within the software, then a patent may be a more appropriate form of software intellectual property protection.

Registered design rights

• Design rights protect the visual appearance of software, including elements like graphical user interfaces (GUIs), screen displays, and icons.

• You can register your unique and original software designs with the UK IPO if it passes the relevant criteria.

• A well-known example of registered design rights in software is Apple's iOS operating system, which protects and prevents others from using the visual appearance of icons, buttons and other user interface elements without Apple’s permission.

Patents

• A patent protects the technical ideas behind the way the software works. Patent protection gives an inventor the legal right to prevent others from using their invention.

• In order to obtain a patent for software with the UK Intellectual Property Office (UK IPO), you must be able to prove that the software is novel (i.e. new and unknown to the public), there must be an inventive step that has a technical effect or solves a technical problem.

Trade marks

• Once you have created your software, in addition to protecting the design and technical elements comprising the software, you will also want to ensure that you protect any names, logos or slogans associated with your software.

• You can do this by registering a trade mark which specifies the types of services or goods that your trade mark should protect.

• Registering your unique branding elements as a trademark will help you build brand recognition and prevent third parties from using your marks without your permission.

Database rights

• Database rights automatically protect databases in software. Copyright protection can apply to a database if it's an organised collection of independent data that can be accessed individually, reflecting the author's creative work.

• If a database doesn't meet copyright criteria, it can still be protected by database rights. To qualify for a database right, a significant investment of resources (financial, human or technical) is necessary to obtain, verify and present the database's contents.

• The creator of the database has the exclusive right to prevent extraction or use of a substantial portion of its contents.

Tips to mitigate risk and protect your software intellectual property

1. Secure the relevant IP rights

It is essential to identify and secure the appropriate intellectual property rights for your software. This may include copyright, database rights, trade marks, patents or registered design rights. Each type of IP right offers specific protections for different aspects of your software.

By obtaining these rights, you establish legal ownership and gain the ability to enforce your rights against any unauthorised use or infringement. Additionally, once you have secured your software intellectual property, it is also vital that you monitor and regularly search for any signs of unauthorised use of your software IP.

2. Ensure third parties agree to non-disclosure agreements (NDAs) and confidentiality terms

When dealing with third parties, such as contractors, suppliers or partners, always ensure you have robust NDAs or confidentiality terms in your contracts with them. These agreements protect your software intellectual property and trade secrets, preventing others from disclosing or exploiting it without your permission.

3. Carry out frequent intellectual property audits

Conduct regular software intellectual property audits to assess and manage your IP assets. Identify any potential vulnerabilities and take necessary steps to strengthen your software intellectual property protection strategies.

4. Carefully draft employee and contractor agreements

Ensure that all of your agreements with employees and contractors address intellectual property ownership and confidentiality. The general position under English law is that IP rights created by an employee in the course of employment automatically belong to the company. However, it is particularly important when you hire freelancers to create software intellectual property for your business. Ensure your freelance contract effectively transfer ownership of the work to the company during the engagement.

Docue has several templates that can help you protect your software intellectual property with your employees and/or contractors, including our:

• Employment contract;

• Freelance contract; and

• Consultancy agreement.

5. Implementing robust measures when using AI to create software intellectual property

With AI at the forefront of our minds, we had to mention the importance of ensuring you have adequate human checks when it comes to using AI to build software intellectual property.

While AI that assists in generating code or software content such as GitHub Co-Pilot have been a welcomed tool by the developer community. However, to ensure your software intellectual property does not infringe third parties' IP, human oversight and checks are essential to review and verify the AI-generated output.

Your software intellectual property is a valuable asset that deserves protection. By understanding the types of IP rights available and implementing proactive measures, you can safeguard your software intellectual property.

Contracts to protect your software intellectual property

If you’re looking for contracts to effectively licence or transfer your software intellectual property, check out our IP templates:

- Copyright licence;

- Trademark licence;

- IP licence (to license more than one type of IP);

- Copyright assignment (deed);

- Trademark assignment (deed); and

- IP assignment (to transfer ownership of more than one type of IP).

Are you ready to take the first step towards safeguarding your software intellectual property?

Sign up with Docue today and discover firsthand how simple creating your own contracts can be!