Software copyright

Why not patent?

Whilst we do on occasion apply for patents to protect software, it is the exception rather than the rule. This is largely due to the rules over what you can and cannot patent, but is also due to the pace at which software can become outdated, or superseded.

Although the US is more open to software patents, in the UK and EU, you cannot specifically patent computer programmes, mathematical formulae, mental acts, business models or presentation of information, unless there is a specific technical effect that happens to be embodied in a piece of software, which can be hard to define.

However, if you think your software is particularly novel and inventive, please contact us at an early stage to allow us to assess the patentability of your IP and keep you informed of the options available to you.

The pros and cons of copyright

Instead, copyright is the more usual way of protecting software. On the plus side, copyright arises automatically (it does not need to be applied for) and lasts 70 years after the death of the author. This means there is nothing specific you need to do, for your software (or any other creative work) to have copyright protection.

However we do recommend that you include a copyright notice in the headers of all source code files, help files, user manuals and/or ‘about this software’ pages, to make the assertion of copyright explicit.

You should also note, that for copyright purposes, source code and object code are considered equivalent.

The minimal format of the copyright notice should be:

Copyright © [Year of first publication], [Name of owner, not necessarily same as Author, of copyright]

For example:

Copyright ©, 2002, University of Oxford

However, it is more usual to have a somewhat extended version, adding the title/name of the copyright we are claiming – ‘mySoftware’ and making the point ‘All Rights Reserved’.

We also reinforce the moral rights (separate to copyright and retained by Authors) of the Authors. This entitles the authors to be referenced correctly (right of attribution) and for them to be able to protect the integrity of the works from abuse (alteration, distortion, mutilation or other form of derogatory treatment).

For example:

mySoftware © Copyright, Oxford University Innovation Limited 2014. All Rights Reserved.
The authors, being Professor C. Babbage, Dr A. Turing & Ms A. Lovelace have asserted their moral rights.

Somewhat less advantageously (but very importantly), copyright only protects the code, and not the ideas contained therein. Therefore, if it is your idea that is fundamentally innovative, rather than the code itself, or if the code is relatively short or simple, you should be very careful about disclosing source code, without an appropriate licence or agreement in place, or indeed at all in some cases. Again, your technology transfer manager will be able to advise the most sensible approach to take with your code.

For example, if someone can understand what you have done, just by looking at your code, and then independently reproduce the same functionality themselves from scratch (so long as the code is substantively different), then they have not infringed your copyright.

However, if they have simply taken your code and translated it into another language (eg Java to C++), then this would be considered a ‘derivative’ work, and they would need an appropriate licence to do so, without infringing your copyright.

Third party copyright

So far, we have only looked at your own copyright, but it is very likely that in the course of developing your software, you will have made use of other people’s copyright.

This might be simply the use of a text editor or a development environment (eg Matlab, LabView, Mathematica, R, X-code, Visual Studio, etc), but might also include SDK’s, libraries or frameworks. Often there are few implications to using such third party tools and/or code in a non-commercial manner (ie as part of your academic research), but when you decide to commercialise your software, you may need to have a specific commercial licence (as is the case for both Matlab and LabView).

Additionally, if you have used code released under some open source licences, there may be specific restrictions as to what you can do with your own code. For example under the Gnu Public Licence (GPL), you must release the source code of any derivative software under the same GPL licence.

However, there is a distinction depending on whether the third party code is included in your own software (making your software derivative), or merely linked to from your code (which remains an ‘original’ work).

For example, generally it is fine if your software requires the third party code to be pre-installed on the computer, but not if it is compiled into the same binary (at this point, your compiled code becomes a derivative work, even if your source code is original). There are specific questions about these aspects of 3rd party code in the invention record, and it is important to discuss this with your technology transfer manager.

Database right

Databases do not generally fall under copyright (unless there is substantive originality in the arrangement of the contents), but have their own ‘database right’, if there has been a substantial investment in obtaining, verifying or presenting its contents.

Like copyright it is automatically assigned, but the term of protection is much shorter. Database right lasts for 15 years from making but, if published during this time, then the term is 15 years from publication.

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