The term ‘software’ has no real definition, which allows the law to adapt quickly to new forms of automated creations. However, softwares are protected by copyright from the moment of their creation.
In principle, the creator of the software is the owner of the copyrights. If the software is a work of collaboration between various authors, all of these various authors are co-owners of the copyrights on their common software. If the software was commissioned, the author remains the owner of the rights on his software, except in the case where a licensing or assignment agreement was signed. If the author of the software is an employee who operates within the scope of his functions or following the instructions of the employer, the latter will automatically obtain the economic rights on the software developed by his employee.
There are several forms of contract in order for a software publisher to grant the right to install and use one of its software.
The transfer of intellectual property rights is framed by a strict formalism as per Article L.131-3 of the CPI.
The licensing agreement allows the licensee to use the software and, as a result, for the owner to earn an income from it, while protecting this software against an unauthorized use. The licensee thus benefits only from a concession of the rights to use and does not, in any way, become the owner of the software.
If concluded in exchange for a fee, the licensing agreement is a service agreement. If not, it is a loan agreement.
The licensing agreement only allows the licensee to use the software. To transfer the rights to a third party, an assignment agreement on the software must be concluded.
There are other forms of contracts pertaining to softwares, notably the maintenance contract, which often accompanies a licensing agreement. The maintenance contract provides a service consisting in maintaining a computer system in a working state (i.e. by making the necessary corrections).
The custom software development agreement is an IT contract according to which the customer orders a specific software. Said software must be developed in compliance with specifications contained in a schedule of conditions in order to meet the customer’s particular needs. The customer therefore orders a software, on which he will be granted a right to use by the publisher within the framework of a licensing agreement, or will be transferred the intellectual property rights by the publisher through an assignment agreement.
Once the licensing agreement is concluded, it is necessary to ensure that the software can be integrated into the company’s IT environment. In this case, a software integration contract must be established, allowing the software to be adapted by making modifications. In this case, the integrator must write and implement a program that allows for the management of different programs and for them to run coherently together.
Contrary to a classic software installed directly on the user’s computer, the SaaS software is located on the provider’s server and the client only accesses it through the Internet. This allows the customer to benefit from the software in a personalized way and adapted to his needs. Thus, it is a service concession contract rather than a software license agreement.