In the European Union, software is protected primarily by copyright under Directive 2009/24/EC. Software can also be patented in limited cases when it produces a technical effect. Strong contracts and open source compliance are equally critical to value your code. Dreyfus advises tech companies, AI providers and SaaS scale-ups across Europe.
EU Directive 2009/24/EC on the legal protection of computer programs gives the broadest definition. The term computer program covers programs in any form, including those embedded in hardware. It also covers preparatory design material, provided that material can later result in a computer program.
In practice, the following elements may form part of a protected software:
Two principles to remember when choosing the protection strategy. Software copyright is automatic and free. You do not need to file anything. But you must build proof of authorship and date. Software patents are possible at the European Patent Office only when the program produces a technical effect beyond mere data processing.
A European patent granted by the EPO offers up to 20 years of exclusive rights from the filing date, in all designated EPC member states.
Software protected by copyright benefits from the standard term: lifetime of the author plus 70 years after death, harmonised across EU member states.
Article 52(2) EPC excludes computer programs as such from patentability. The EPO grants patents only when the invention produces a technical effect.
Economic rights in software created by an employee in the course of duties belong to the employer by default. Moral rights remain with the developer.
Ownership questions are the most common cause of software disputes. Three configurations to know:
Employee-created software. Article L.113-9 of the French Intellectual Property Code transfers the economic rights to the employer when the software is created by an employee in the course of their duties. Moral rights stay with the developer.
Contractor-created software (freelance, agency, outsourcing). French law presumes nothing in your favour. The contractor remains the author and owner unless a clear written assignment is signed, with the precise scope of rights, territories and duration listed (Article L.131-3 CPI).
AI-assisted software. Where an AI tool generates code, current case law treats the AI as a tool. The natural person making creative choices can be the author of the resulting expression, provided the contribution is original. Pure AI generation without human input is unlikely to qualify.
Allow re-use with minimal obligations, mainly attribution and licence inclusion. Compatible with most commercial models.
Permit linking with proprietary code but require modifications to the licensed library to remain open.
Require derivative works to be distributed under the same licence. AGPL extends this to SaaS use, with major business implications.
Build a Software Bill of Materials matching the actual dependency tree, aligned with NIS2 and the Cyber Resilience Act.
Offer the same code under an open source licence and a commercial licence, with clear contributor agreements (CLA / DCO).
The EU AI Act, in force since 2024 with phased application from 2025 to 2027, creates a new compliance layer for software providers.
Three obligations to anticipate.
Sony Computer Entertainment Europe v Datel (CJEU, C-159/23, 17 October 2024). The CJEU clarified that software running in memory and modifying variables in another program does not infringe the underlying program’s copyright when no source code or object code is reproduced.
Brompton Bicycle Ltd v Chedech (CJEU, C-833/18, 11 June 2020). The form-of-protection test requires free and creative choices. Applied to software, it limits patentability claims that try to cover functional features through copyright.
SAS Institute v World Programming (CJEU, C-406/10, 2 May 2012). The functionality of a software, its programming language and the format of data files are not protected by copyright. This is the leading case behind every clean-room reimplementation strategy.
Inventory, originality assessment, ownership chain, evidence strategy, patent vs trade secret arbitrage.
SBOM review, licence compatibility, dual licensing, CLA/DCO, M&A due diligence.
EULA, B2B licence, SaaS terms, distribution and reseller agreements, escrow.
Drafting and prosecution of computer-implemented inventions before the European Patent Office.
Mapping, downstream deployer contracts, FRIA, transparency reports, supplier playbooks.
Cease-and-desist, preliminary injunctions, saisie-contrefaçon, criminal complaint for piracy.
Software is protected primarily by copyright under EU Directive 2009/24/EC, which covers source code, object code and preparatory design material. Patent protection is available at the European Patent Office only when the invention produces a technical effect. Trade secret protection complements both.
Yes, but with limits. Article 52(2) of the European Patent Convention excludes programs as such. However, the EPO grants patents to computer-implemented inventions that produce a technical effect, such as improvements to memory use, data security or hardware interaction.
Article L.113-9 of the French Intellectual Property Code transfers the economic rights to the employer when software is created by an employee in the course of their duties. Moral rights remain with the developer. The rule does not apply to contractors or freelancers.
Yes, provided you comply with the licence terms. Permissive licences (MIT, BSD, Apache 2.0) allow commercial use with minimal obligations. Copyleft licences (GPL, AGPL) require derivative works to be distributed under the same licence.
The AI Act applies if your software qualifies as an AI system or as a general-purpose AI model placed on the EU market or used in the EU. Specific obligations depend on the risk category.
The “infringement seizure is a court-ordered seizure for evidence, unique to French IP procedure. Granted ex parte by a French court, it allows a bailiff and an IT expert to enter premises and copy code, logs and documents.
