We concluded our last post with the question: how is the software developed by a startup protected. It is a subject that has generated a lot of debate mostly when it comes to legally classify software and identify the kind of protection applicable.<\/p>\n\n\n\n
Nowadays, there is not an homogeneous approach, and the way adopted by each country and international and regional organizations oscillates between author rights and patents. In Chile, for instance, and in international treaties\u00b9, it is often resorted to author rights for software\u2019s protection, meanwhile it\u2019s patenting is more common in the USA and Japan.<\/p>\n\n\n\n
Now, although author rights offer a more lasting and less costly protection as well as a legally and technically simpler registration, the protection granted by it extends mainly to the software\u2019s \u201cliteral expression\u201d\u00b2, meaning, the source code, receiving the treatment of a literary work, without necessarily meeting all the features of a computer program. On the other hand, the patenting of an invention requires for itself to fulfil different requirements such as, namely, the software\u2019s originality and novelty. Likewise, it is necessary to submit a request whose complexity may affect the result of the endeavour and its temporal and territorial limits, which could result in a more restrictive protection.<\/p>\n\n\n\n
As we already mentioned in the last paragraph, in Chile, software is subject of protection through author rights, under Law N\u00ba 17.336 of Intellectual Property. And it is about \u201crights that, only by means of the work\u2019s creation, works\u2019 authors acquire of the intelligence in literary, artistic and scientific domains\u201d <\/em>(Art. 1, Law 17.336). In the same way, article 3 number 16 grants protection to \u201cComputer programs, whichever is their way or form of expression, as source program or object program, and even the preparatory documentation, its technical description and operating manuals<\/em>\u201d.<\/p>\n\n\n\n The procedure may be carried out by the author and\/or the titleholder throughout the year before the Department of Intellectual Rights, registering a copy of the work and by getting its related registration in the Public Registry of Author Rights Property after the payment of a fee calculated on a percentage over the basis of the UTM (Monthly Tax Unit) (percentage varies according to the type of work, in the case of a software it is of 35%). In order to conduct the registration (online, in person or by mail) it is necessary to submit the pertinent registry request, a copy of the work, personal information on the author and\/or titleholder and the payment receipt.<\/p>\n\n\n\n Registry grants the moral and proprietary rights over the work and the recognition of its ownership and an exclusive right for its use and commercial exploit. Therefore, protection achieved through the registry is particularly beneficial if we take into account that software\u2019s development is critical for a technology based Startup project, being these intangible assets, not only its most important creation but its only commercial value.<\/p>\n\n\n\n \u00b9See WIPO treaty about Author Rights (Article 4); the TRIPS Agreement of the World Trade Organization (Article 10); directive (91\/250\/CEE) of the European Council\u2019s European Union Computer Programs Directive (article 1)<\/p>\n\n\n\n
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