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What is software?

A “software” is, according to the official vocabulary of data processing, the “set of programs, procedures and rules, and possibly of the documentation, relating to the operation of a set of data processing” ( Official Journal of January 17 1982 ).

It is therefore a more or less complex set of instructions, written in a programming language (which can be a compiled language or an interpreted language) intended to be executed by a processor, that is to say say by a computer, a mobile terminal (phone, tablet, etc.) or by more rudimentary or more advanced devices (smart card reader, robot, connected object such as a smart speaker, etc.).

There are many types of software, depending on whether you are looking from a technical, legal, functional point of view, etc. : server software or client software, firmware, specific software (developed by or for a given user company) or software package (standard software intended to meet the common needs of many users), management software (accounting software, payroll software , sales management software or CRP, ERP or ERP software, SCM, WMS, etc.), mobile application, proprietary software or free software (the source code of which is published and / or freely modifiable), etc.

Legally, all this software is globally governed by common rules: these are mainly the provisions of the Intellectual Property Code. For example, we can cite the following principles:

The software is likely to be protected by copyright (that is to say under the title of literary and artistic property ) as a work of the mind, provided that it is “original” (condition which is the subject of a rather abundant case law and difficult to analyze).

Article L. 112-2 of the Intellectual Property Code provides that “are considered in particular works of the mind within the meaning of this code (…) 13 ° software, including preparatory design material “. “Preparatory design material” means the functional and technical specifications of the software, i.e. documents, established in principle before the start of software development, but also during development and occasionally. software developments, which describe the software’s functionalities, its technical operation, the structure of the data it uses and generates, etc.

On the other hand, in French law (unlike many other legal systems), software is in principle not patentable, unless it is incorporated into a technical device itself liable to be the subject of a patent filing. patent.

The rights of the author of a software and the rights of the users, holders of a license of use, are governed by the legal provisions appearing in articles L. 122-6 of the CPI.

These provisions are not always perfectly suited to the new modes of distribution and use of software, such as SaaS or cloud computing .

The software is protected by penal sanctions: the violation of the rights of the author of a software constitutes the offense of counterfeiting of software. In this regard, the IP Code provides for a specific infringement seizure procedure for software (Article L. 332-4 of the Intellectual Property Code).

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