Written by León Lanis V., Associate – Chile
In the modern digital economy, software often represents a company’s most valuable assets. In the last decade, there has been a steady increase in the demand for software for all fields and markets, from operating systems to niche solutions tailored to a specific need. Yet, despite its central role in innovation, many organisations do not fully understand how Intellectual Property (IP) rights might help them protect their creations and ensure that appropriate contractual structures are in place. In this blog, we will dive into the different strategies and IP regimes that may benefit and protect your software creations.
Copyright: The Baseline Protection for Software
In most jurisdictions, software creations are essentially protected under copyright law. The Article 10 of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) -adopted in 1995- provides that computer programs -whether source or object code- shall be protected as literary works under the Berne Convention of 1971. Thus, as a rule of thumb, computer programs are protected by copyright as literary works.
Copyright protection for software creations, thus, arises automatically upon creation and protects the expression of the code, i.e. the linguistic expression in code lines and structure of the programs. This means copyright safeguard:
- The specific code written by the developer,
- The structure and logical organisation of the programs,
- Certain elements of the software’s documentation.
However, copyright does not protect underlying ideas, algorithms, methods, or technical functionality implemented by the program. Thus, competitors can legally and independently develop software with similar functionalities, provided that actual expression is not directly or indirectly copied.
From a practical standpoint, copyright protection for software gives the developer (or the owner) exclusive control over the reproduction, distribution, modification, and commercial exploitation of the program. For companies, this provides a strong enforcement tool against copying, piracy, or unauthorised reuse by competitors, contractors or former employees. In most jurisdictions, copyright protection typically lasts for the life of the author plus 70 years.
Patent Protection for Software: Challenges and Opportunities
Many IP experts have suggested that Patents are a more suitable regime for software inventions. The problem with strictly categorising software as a literary work is that these creations are usually much more than a literary expression: its lines of code have a function that is independent from the grammatical construction of the lines of code. The common requirements for patentability are:
- Novelty,
- Inventive step, and,
- Capable of industrial application.
The main challenge for software’s patentability is in identifying the inventive step, because most programs evolve by incremental changes and improvements, usually obvious for a person working in the same field and therefore do not involve an inventive step.
Because many legal systems exclude “computer programs as such” from patentability, obtaining patent protection for software can be challenging, with an important exception.
Hybrid regime: when copyright and patents blend for software protection
An exception to the aforementioned is the modern “hybrid regime”, where software is both covered by copyright law and patent protection. Here, the copyright protects the specific implementation (the code itself) and the patent protects the underlying technical invention.
The hybrid regime model began with an important precedent set by the European Patent Office (EPO), known as the Vicom Decision (T 208/84). In this case, EPO established that a software claim is not excluded merely because it includes a mathematical method or computer program if it produces a technical effect.
This means that a software (protected by copyright) can be patented if:
- It solves a technical problem,
- Through technical means,
- And produces a technical effect.
As a way of example, a computer program that exclusively analyses medical data can only be protected by copyright. But if the same program helps, for example, to calibrate a machine’s sensor, the IP Authority can consider it patentable.
This hybrid model helps software extend its IP protection by including its underlying ideas, algorithms, methods, etc.
Strategic considerations for businesses:
Adopting the hybrid regime requires early and careful planning. Several practical considerations should guide the decision:
- Early IP assessment: Patentability depends heavily on novelty. Public disclosure – to include product launches, marketing, or even academic publications – can hinder patentability.
- Identifying technical contribution: As previously stated, not all software inventions can qualify for patent protection. The key question is whether the invention provides a technical solution to a technical problem.
- Balancing trade secrets and patents: In some cases, a company could prefer trade secret protection for certain algorithms or models. It is possible to explore hybrid solutions.
- Jurisdictional differences: Although many countries implement WIPO’s standards, the process and requirements vary in each jurisdiction; for instance, the thresholds and interpretations for “technical effect” differ between the US and Europe. Businesses operating cross-border should consider multi-jurisdiction strategies for IP protection.
Conclusion
For companies developing software-driven products or services, relying on a single form of protection may leave valuable innovation insufficiently safeguarded. While copyright automatically protects the code itself and remains the default regime for computer programs, certain software-based innovations may also qualify for patent protection when they deliver a genuine technical solution to a technical problem. In such cases, a hybrid protection strategy -combining copyright and patents- can significantly broaden the scope of exclusivity, protecting both the implementation and the underlying technological contribution. Identifying these opportunities early is critical, as patentability often depends on preserving novelty before public disclosure. For this reason, businesses should approach software protection not as a purely legal formality, but as a strategic exercise in intellectual property management aimed at maximizing the long-term value of their technological assets.
Harris Gomez Group METS Lawyers ® opened its doors in 1997 as an Australian legal and commercial firm. In 2001, we expanded our practice to the international market with the establishment of our office in Santiago, Chile. This international expansion meant that as an English speaking law firm we could provide an essential bridge for Australian companies with interests and activities in Latin America, and to provide legal advice in Chile, Peru and the rest of Latin America. In opening this office, HGG became the first Australian law firm with an office in Latin America.
As Legal and Commercial Advisors, we partner with innovative businesses in resources, technology and sustainability by providing strategy, legal and corporate services. Our goal is to see innovative businesses establish and thrive in Latin America and Australia. We are proud members of Austmine and the Australia Latin American Business Council.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It does not create a solicitor-client relationship, and readers should seek independent legal advice for their specific circumstances. Harris Gomez Group accepts no liability for reliance on this content.