Software Protection in Mexico and the US.

By: Miguel Ortega from Wardenclyffe, Inc.

Software in Mexico

For purposes of the Federal Copyright Law, the software will be understood to be computer programs and according to this law, “a computer program is understood to be the original expression in any form, language or code, of a set of instructions that, with a specific sequence, structure and organization is intended for a computer or device to perform a specific task or function.”

Computer programs are protected from the moment of their creation and fixation on a tangible medium, so their registration with the Public Registry of Copyright is not necessary. However, its registration is recommended, since the public registry is intended to guarantee the legal security of the authors, of the holders of related rights, and of the respective economic rights.

As a general rule, copyright is divided into two classifications: moral rights and economic rights. The author is the sole owner of the moral rights over the computer program of his/her creation. It is the responsibility of the creator of the computer program to exercise the moral rights, which includes the decision and conditions of the publication of the program, demand his/her recognition as an author, demand respect for the program (when any action or attack that may cause demerit to the program or the author), modify the program and/or withdraw it from the commerce. Regarding economic rights, the author has the right to exclusively exploit his/her works or to authorize others to exploit them. The owner of the patrimonial right is the author or the acquirer by any title. The duration of the patrimonial right is through the life of the author plus one hundred more years from his death or the death of the last co-author.

The economic rights over a computer program and its documentation, when they have been created by one or more employees in the exercise of their functions or following the instructions of the employer, correspond to the employer.

The owner of the copyright on a computer program will retain, even after the sale of copies, the right to authorize or prohibit the lease or sell of said copies. Likewise, the legitimate user of a computer program may make the number of copies authorized by the license granted by the copyright holder.

Software in the US

The United States Copyright Office defines a computer program as “a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result.” As the copyright owner of the computer program, there is not mandatory to register your work since you get copyright protection the moment your work of expression becomes fixed in a tangible medium, including unpublished programs. Despite this, it is highly recommended to register the program, mainly because it is a requirement in order to file a suit against a person who is infringing on your copyright.

As a copyright owner, you have three main exclusive rights: reproduction, which is the right to make copies of the program; adaptation, to create derivative work based on the original program; and public distribution, to sale lease, or transfer in any way the program. For this last right, it is important to keep in mind that the owner will no longer have this protection over the transferred copy.

The duration of copyright protection is throughout the life of the author plus 70 years. In case of an anonymous work or of a work made for hire is 95 years from the date of publication or 120 years from the date of creation, whichever expires first.

The owner of the copyright is the author of the work. When an employee creates a work under the scope of his/her employment (work for hire) the employer owns the copyright. The work for hire terms does not apply when an independent software developer is hired to generate a computer program, since the developer is considered the author and owner of the copyright. Consequently, the independent developer must transfer the ownership of the copyright to the person who hired him/her.

If you like more information, please email us at info@wardenclyffefirm.com.