If you’re a software developer with a great new app or you’ve come up with a fantastic idea that you want a developer to produce for you, one of the first questions you may ask is: What can I do to protect my software idea from being copied?
Unfortunately, except for very limited circumstances, you cannot patent computer software. This means you cannot protect your idea and stop other people copying it.
So what can you do?
Protect your confidential information
Because you can’t stop other people copying your idea, it’s vital that you keep the details as secret as possible until your launch. In addition, there may be elements of the software’s design or architecture which are non-obvious to an end-user which you will want to keep secret even after launch.
Therefore, if you’re engaging external contractors to develop and/or market the software, you should always ensure they sign a Confidentiality and Non-Disclosure Agreement before you disclose details of your idea to them.
Your employees (if any) may already be covered by confidentiality obligations in their employment contracts but, if not, consider updating their contracts or asking them to sign specific agreements. You’ll need to take employment advice to ensure that any changes or new agreements are enforceable.
Protect your intellectual property
Although you cannot patent your idea, your software source code should automatically benefit from copyright, meaning it cannot be copied. You don’t need to do anything to benefit from copyright protection but you will need to be able to prove when the source code was created (in case an infringer claims to have written it first). There are various repositories that you can send your code to as proof of existence on a particular date but all you need is to be able to save your work with a non-forgeable date stamp. It may even be that sending the work to a web-based email account may suffice.
Copyright can also exist in any images or text displayed within your software or sounds played. The screen layouts, menus, icons etc may also benefit from both copyright and unregistered design right protection (and you may be able to apply for registered design right protection as well).
If your software includes any collections of data that are arranged in an original way then there may also be copyright in the database. It may also benefit from the protection afforded by the separate “database right”.
A word of warning however: if you are engaging contractors or sub-contractors to carry out development or design work, you must ensure that you have a written agreement with them agreeing that all intellectual property rights in their work will belong to you or your company. Without this agreement, they will own much of the valuable intellectual property in the work generated from your idea!
Protect your brand
If you have thought of a distinctive name for your software you may want to consider applying to register it as a registered trade mark, which makes it easier to take action against people copying your brand.
Without this protection, you might still be able to take action through a claim of passing off, but only if you can demonstrate your brand has a reputation attached to it.
Matt Worsnop is an Associate Solicitor at BHW Solicitors in Leicester and writes regularly on software law matters.