By: Claudia Marcela Cuellar – Associate Lawyer
With technological development, it is becoming more and more common the existence of companies dedicated exclusively to develop, license and sell software, which will be used for different types of industries and projects. Therefore, it is essential for these companies to be aware of the most important legal aspects in order to avoid future inconveniences. In order to address these aspects, we will elaborate a series of articles where we will point out the key issues that must be taken into account in different fields.
In this first article, we will indicate the recommendations from the intellectual property point of view regarding the company’s employees.
First of all, it is important to mention that, under Colombian law, software development is considered an art and, therefore, it is protected as work under copyright. This means that developers have immediate protection over the software created without the need to register it, and they also have the possibility of registering the software’s logical support before the National Directorate of Copyrights, in order to have greater legal certainty regarding their rights and to publicize these copyrights to third parties.
Additionally, it implies that the software creators have copyrights over the developed software. These rights are, on the one hand, moral rights, which bind the author and his work, and therefore are unwaivable, inalienable, unattachable, and non-transferable (for example, the right to claim the authorship of the work); and, on the other hand, economic rights, which are economic prerogatives that allow the owner to control the exploitation of his work, and which can be transferred (such as the reproduction and distribution of the work).
Regarding works created for a company in compliance with a contract for the rendering of services or an employment contract, article 20 of Law 23 of 1982 “On Copyrights” indicates that the economic rights over the work are presumed to have been transferred to the employer or commissioner, to the extent necessary for the exercise of his activities at the time of the creation of the work. However, in order for this presumption to operate, it is necessary (i) to have a service or labor contract in which work (software) is created, (ii) such contract must be in writing, and (iii) it only covers the works that are developed during the time of employment with the company and that are necessary for the performance of its activities or work. In addition, since it is a legal presumption, if the company so wishes, it may agree with the employee to modify this presumption or agree otherwise.
Consequently, it is essential that a company dedicated to the development of software enter into a written labor contract with its developers, and it is recommended that it include an intellectual property clause in which it is indicated how these patrimonial copyrights will be handled.
At Abusaid Gómez & Asociados we have the experience and capacity to advise you in the negotiation and drafting of this type of contracts in order to protect your company and avoid possible litigation.