1 . Overview
2. Core elements: Playbook
3. Protecting your Software under copyright rules
4. Possible infringements against protected content
4.1 Textual copy
4.2 Non – textual copy
4.3 Decompiling of code
5. Licensing your software
5.1 Open Source
5.3 Creative Commons
6. Limitation of Warranties and Exclusion of Liability
7. About this document
Annex: Disclaimer Model: exclusion of liability
Core elements: Playbook
This Playbook aims to provide guidance on how to share Free Open- Source Software (FOOS), making its code available and guaranteeing certain rights and freedoms that are associated with the computer program, especially in relation to the use and distribution of the license.
In some cases, it might be important to ensure that subsequent use of the specific program can be made and allow actions of copying, modifying, or redistributing the source code, limiting at the same time, the related liability for such use of the same in derivative works.
Protecting your Software under copyright rules
The starting point of this document is the question: ¿Can I protect my software under some kind of license?
The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) provides that:
“Computer programs, whether source programs or object programs, shall be protected as literaryworks under the Berne Convention (1971)”.
The Berne Convention clarifies how computer programs are similar to literary works regardless of their form of expression. This consideration implies that the rules relating to the copyright of literary works will apply in a similar way to computer software. The next step will be to define, in general terms, what is understood as a computer program that can enjoy this type of protection:
Software is a set of instructions, data or programs used to operate computers and execute specific tasks.
It is very important to note that copyright is aimed at protecting the computer program as a whole, as a unit, and not oriented to specific parts of the code that can be understood as independent or even separated.
When you want to determine if there has been any type of infringement related to your work, you must use the code as a whole and not specific parts of it.
There exists, however, the possibility of combining several computer programs in order to create a new program, which for copyright purposes shall be understood as a compilation.
Requirements that computer software must meet to access protection:
The most important requirement for access to the protection of the Intellectual Property of the program under the rules of copyright is the originality of the software: it must be an original creation understood as a work of the author.
Both the source code and the object code of a program are protected. What cannot be understood as a manifestation susceptible to protection are elements such as:
- The programming language of the program
- Some specific functionality
- The format of the files used to execute some of its functions
The graphical interface of the program, although it may be possible to access some form of protection under case judgment C-393/09 – EU Court.
Possible infringements against protected content
The software can be affected by various forms of infringement, the most obvious being a textual copy of it. Before you could determine if a literal copy of the program has been made, a triple test must be performed:
- Determine whether intellectual property is effectively protected by copyright
- That there has been a relevant copy of important elements of the program
- That specific element of the software that is protected in some way has been copied