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How is Software Protected?

By: Jaime Davila Gomez, Attorney

In Mexico, the software is considered a work protected by copyright, so all the provisions of the Federal Copyright Law apply to it, including those that speak of the principle of automatic protection that establishes that the works and their authors (creators) have their rights from the moment the work is created and can be perceived and reproduced and registration is not necessary, although registration is highly recommended.

However, the protection strategy of a work of this type (software, mobile applications, electronic commerce platforms, or any other form of computer use) when it is intended for use in a company, it must be present from the moment a company and/or a programmer (or several) are hired. And it is that this contract, although it implies a provision of services, is very special since it also includes various Intellectual Property specifics like software, confidential information (which could be an Industrial Secret), and even the use of various differentiating signs (trademarks); and therefore, in these contracts, it must be foreseen who will own all these intangibles, ideally being that they belong to whoever paid for the development of the computer program in question, also establishing that whoever develops it should not appropriate any of these elements.

Once the software has been developed, and through well-developed contracts, it belongs to the company and if it will be used internally, the recommendation would be to save the contract for future claims and even make the corresponding registration in the National Author Rights Institute.

In a moment, if the software was created for the purpose of exploiting it, the company has to put together a strategy for its exploitation, and in this case, its registration is almost a mandatory matter for the company, as it helps to protect the “Raw material” in its activity. Additionally, the marketing strategy has to go hand in hand with a legal structure through documents custom-tailored to achieve the economic purpose and safeguard the rights, and avoiding risking the rights. This scheme may involve the creation of contracts for the assignment/transmission of software rights or, as is the case in most cases, exclusive or non-exclusive licenses that allow the use of the computer program in question under the agreed terms and conditions.

Finally, in the direct exploitation of software, the issue of distinctive signs or trademarks comes into play, which differentiates the product -software- from all the others against which it competes. It is necessary to obtain the registration of all signs used for its commercialization (names, designs, sounds, commercial image, etc.), both for the services it provides (example: video editing services) and for the good itself, such as software in this case. This kind of registration protection is done through the Mexican Institute of Industrial Property.

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