Although the question of the legal protection of computer programs (software) by copyright or patent gives rise to some controversy, Article 1(2) of Decree-Law No 252/94 of 20 October 1994 (referring in this particular case to copyright) provides that computer programs with creative character enjoy in Portugal protection identical to that afforded to literary works, i.e. they are protected by copyright.
It must be pointed out in this regard that the legislation applicable to patents valid in Portugal (Article 52(2)(c) of the European Patent Convention and Article 51(1)(d) of the Portuguese Industrial Property Code) permits the protection of the vast majority of computer programs by patent, even though the text of the law may seem to exclude them from protection. In fact, in most applications, it is possible to patent a computer program, which means that the concept underlying the program can be protected. Copyright protection is of an alternative or complementary nature, by protecting the practical implementation of this concept in code.
Therefore, a computer program can be protected simultaneously by patent and copyright.
In the light of the legislative option adopted in Portugal and in most of the countries of the European Union, computer programs can be protected on the same terms as in Portugal
It is important to mention that the protection of software by copyright “does not affect the freedom of the ideas and principles underlying any element of the program or its interoperability, such as logic, algorithms or programming language” (Article 2(2) of Decree-Law No 252/94). Thus, what this law intends to protect is the expression of the computer program and not the basic algorithms, working methods, mathematical programming concepts or interfaces. This is a provision equivalent to the one existing in the general copyright law, which excludes from protection “ideas, processes, systems, operational methods, concepts, principles or discoveries (…), in themselves and as such” (Article 1(2) of the Portuguese Copyright and Neighbouring Rights Code), and also in patent law, which excludes “discoveries, as well as scientific theories and mathematical methods” (Article 51(1)(a) of the Portuguese Industrial Property Code).
Do I have to register my computer program?
In practice, copyright exists from the moment of creation. Therefore, it is not mandatory for creators to deposit their works, but it is extremely important to do so because the deposit creates a presumption of ownership of the rights in the work and attributes an irrefutable date that can be invoked against third parties who contest ownership.
The protection of works of software covers the source code and the object code and any type of software can be deposited, irrespective of its programming language or the platform for which it was designed, for example:
- Device drivers
- Applicational software
- Embedded software
- Web environment platforms
- Apps (for mobile devices, tablets, etc.)
- Operative systems
Computer programs can be registered with the General Inspectorate of Cultural Activities (IGAC) or with other entities.
Patent protection, on other hand, requires the patenting process to be carried out. Therefore, it is extremely important that the inventive elements are not disclosed to the public before initiating the process.
Patent protection may not be initiated, but it is the only way to guarantee control of the concept underlying the invention, in this case the computer program. It therefore allows the owner – by being recognised as the inventor of the technology – to obtain direct dividends: adding value to the business, strengthening its marketing, receiving royalties from potential licensees and preventing third parties from commercialising a product based on the technology, among others.
For every case there is a tailored response to this question, consisting typically of an analysis of the benefit of obtaining the various assets: patents, copyright, other industrial rights or intangible goods.