Lexicon > Software

IT Glossary

Software

Software is a set of programs, processes and rules, and possibly documentation, related to the operation of a data processing system.

It is composed of :

  • A source code;
  • An object code translating the source code into a machine-readable and executable language;
  • Functionalities allowing the user to perform a treatment.

Software is usually structured in files that can be executed by the machine concerned.

It is called upon to communicate and operate with other elements of a computer system and with users, in particular through interfaces that allow this interconnection and interaction.

The term software generally refers to any type of computer program, and therefore also to software packages that meet the general needs of several personal and SaaS that are remain in the cloud.

However, there are two main categories of software:

  • Application” software designed to assist users in performing defined tasks;
  • The “system” software intended to perform operations and processing related to the machine concerned.

The operation of a software may require the implementation of personal data processing, in which case the software may be subject to the GDPR and thus present appropriate technical and organizational security measures in order to guarantee the rights and freedoms of data subjects.

If the ideas and principles that underlie the logic, algorithms and programming languages of the software are not protectable by copyright law, then the intellectual property as such, the expression of these ideas and principles can be protected by the copyright even though the software is utilitarian in nature.

The author of a software can thus have in particular a right of reproduction, modification and marketing of his work.

Certain aspects of the software may also potentially be protected by design law, provided that the form of the designs concerned is clearly distinct from their function.

In any case, the development of a software must be contractually supervised with care. The transfer of the rights to the developments must also be provided for as and when they are created.

Legislation focus

“Are considered in particular as works of the mind within the meaning of the present code: […] (13) Software, including preparatory design material […]”

Article L112-2 of the Intellectual Property Code

Case law focus

The Court of Justice of the European Union (CJEU) was able to consider “that the infringement of a clause in a computer program licensing agreement relating to the intellectual property rights of the holder of the copyright in that program falls within the concept of ‘infringement of intellectual property rights’, within the meaning of Directive 2004/48, and that, consequently, that holder must be able to benefit from the guarantees provided for by that directive.”

Court of Justice of the European Union, December 18, 2019, No. C-666/18

The Bouchara firm assists you in particular in :

  • The drafting and negotiation of your software development contracts;
  • The drafting of your software license and assignment agreements;
  • Making your organization GDPR compliant;
  • The drafting of data protection policies (privacy policy, computer charter …);
  • Documentation of your processing (register of processing activities, register of violations, privacy impact analysis, prior consultation…);
  • Obtaining certifications and adhering to codes of conduct;
  • The study of the legal feasibility of the implementation of a new personal data processing;
  • The drafting and transmission of your codes of conduct to the CNIL for approval;
  • Legal analysis of the compliance of your data processing, including data transfers outside the European Economic Area;
  • Drafting and negotiating your data processing agreements (DPA);
  • Drafting your Binding Corporate Rules (BCR) and Codes of Conduct;
  • Training and awareness of your employees.
  • We are also the external Data Protection Officer of many data processors and subcontractors.