Methods of intellectual property protection for software products

In present conditions the area of information technologies, particularly software development, is rapidly evolving. By the number of certified specialists in IT and volume of export of services for the software production, Ukraine ranks the fourth place among the leading countries of the world.
The computer program began to be protected as an object of copyright in the US in 1964 for the first time. Intellectual Property Rights includes: personal non property rights of intellectual property and / or proprietary intellectual property rights.

Personal non-property rights of intellectual property on the object created by the order or in connection with execution the employment contract belong to the employee or creator, who created the object. Although in some cases, certain personal non-property rights for intellectual property on an object may belong to legal person or individual, in which the employee works or to the customer. Proprietary intellectual property rights on the object created by the order or in connection with execution the employment contract, jointly owned to the employee who created the object and the customer or legal person or individual, in which he/she works, unless otherwise provided by contract (Art. Art. 429, 430 Civil Code of Ukraine). The transfer of property rights of author copyright agreement made with this list of property rights. The transfer of property rights of author is registered by copyright contract with specified list of property rights.

Often IT companies conclude with the developers of IT products certain contract in terms of which indicated that everything that employee created on his working computer by using company resources and in working hours - is considered the property of the company. And sometimes there are legal disputes arising just on the grounds that it is difficult to prove who the real owner or the product is.

The Law of Ukraine «On Copyright and Related Rights» defines a computer program as a set of instructions in the form of words, numbers, codes, schemes, symbols or in any other form, expressed in the form of computer-readable, which lead it in an action for a particular purpose or result (this concept covers both the operating system and application program expressed in output or object codes).

In the process of the rapid development of relations in the field of IT, the issue of comprehensive protection of computer programs, software and other IT products in Ukraine is still insufficiently settled.

Primarily due to lack of a comprehensive legal framework that would have protected software and computer programs. According to the Law of Ukraine «On Copyright and Related Rights» finished software product is protected by law as a literary creation. But the algorithm, which usually is an important software product, still remains unprotected. Such gaps in the legislation concern not only Ukraine, but also many countries worldwide, including Russia, Japan and the USA.

For example, in Japan, the existence and effect of copyright is limited by boundaries of the Country in which the product was created. The fact of the creation of an intellectual property object does not entail recognition of any rights of the author to it in other countries. Therefore, if the country does not participate in any international agreements on copyright protection, the usage abroad this product without the author's consent and without payment of remuneration is considered legitimate.

As for other problems, for example, the Russian Federation, as most countries in Eastern Europe, is literally drowning in software piracy. The citizens of this region don’t want to pay for licensed. Unfortunately piracy is a problem not only in Eastern European region but also in the US, causing millions of losses for computer companies.

Regarding the problematic issues of legislation it is that the copyright in this country is associated primarily with a single subject. When in modern companies for the preparation of a program are working several people that in order to be eligible to become the coauthors they must prove their creative contribution to the creation of software that is quite difficult for the person who developed only algorithm for system code, not participating while in its development or in the design of programs, etc. Also, there are some problems with the registration of computer programs because registration of computer programs in the Russian Federation is not compulsory, but in this way author has the ability to protect themselves from encroaching on the object of his intellectual property, which will be confirmed by a registration certificate.

Another equally important problem is that IT products are often used illegally, namely without a license that violates intellectual property rights to these products. However, for the time formation of an independent Ukraine, there was adopted a number of normative legal acts that aimed on settlement of the legitimate use of software and intellectual property rights protection for computer software. Such normative legal acts include: Directive of Cabinet of Ministers of Ukraine «On Approval of the Concept software legalization and control of illegal use of it» № 247-p of 15.05.2002, Directive of Cabinet of Ministers of Ukraine «On approval of the legalization of computer programs in the executive branch» № 253 of 04.03. 2004, the Law of Ukraine «On the distribution of audiovisual works, phonograms, computer applications, databases» № 1587-III of 23.03.2000, Directive of Cabinet of Ministers of Ukraine «On state registration of copyright and agreements concerning author right on work» № 1756 of 27.12.2001, Directive of Cabinet of Ministers of Ukraine «On approval of the Procedure of use computer in the executive branch» № 1433 of 10.09.2003, Order of Ministry of Education and Science of Ukraine «On establishment of the Register of producers and distributors of software» №8 of 08.01.2003.

Today, there are three real and effective ways to protect software against unauthorized use:

• to protect program source code by using copyright;
• to protect algorithms used in programs as solutions to specific problems;
• to protect name of the program.

The first is the copyright of a work, such as a computer program, which arises from the moment of its establishment and material expression and mandatory registration does not required. Ukraine has a presumption of authorship according to which the author is the person named as the author on the original or copy of the work. However, for more guarantees you can register the copyright of the program and agreements concerning copyright to this product. Obtaining protection of the state for the software and secure confirmation of authorship occurs very quickly, according to the standard procedure of registration of copyright. The author receives a certificate, which allows him to dispose freely of his rights for the software, database or another product or delegate authority to a third party. In addition, it is possible to make your own data as a producer or distributor of the software in the Register of producers and distributors of the software. Distributing software is possible only with the marking control marks obtained in the legally established procedure.

The second is the protection of algorithms used in the software. Similar algorithms can be protected of external encroachments by receiving the patent. The algorithm, namely its essence and each stage is recorded and are made in clear verbal form, and supported by appropriate block diagrams, charts, graphs, etc. If the algorithm has been tested on patentability, application may be filed for the invention, and the author will receive a patent. This method is considered the most consuming and lengthy, but if you want to insure yourself against using your ideas by someone else, this method is considered the most effective protection.

The third is recording of the trademark, name of the program or the site, its domain name. This method of protection allows you to securely protect the name of the program, database or website, as a mark for goods and services. It also provides an opportunity to claim compensation from lawless use of the mark by third parties.

So if you want that your software was protected and avoided any attack on the side of other persons you should have sufficient protection for your IT products.

Today, changes and additions to some legal documents are being developed in Ukraine. Such addition to the legal framework will significantly improve understanding of how individuals can protect their rights and interests in the case of legal disputes.