Patents for APIs or copyright? Find your way through the legislation and the regulations
If you are an API developer you are very likely to be interested in information about the legal framework for protecting the copyright on them. In this article for BBVAOpen4u, María Kovesdi offers several tips to help to navigate your way through the legislation.
María Kovesdi is General Director of MKM International Business Consulting and has spent her career working in public institutions and private companies. In the latest edition of LibreCon she highlighted the potential pitfalls of submitting a patent application based on free software. Now she guides us through the subject of legislation and APIs: patents, copyright, regulations...
She believes the market for APIs is in a phase of expansion, both in terms of the number of APIs due to the development of the mobile channel and the Internet of Things (IoT), and to the European Payment Services Directive (PSD2) in Europe. However, she notes that “the process could be somewhat held up by the divergences in criteria between the various legal frameworks for protecting the copyright of APIs for their developers on a global scale”.
1. The first thing you need to know is…
An API itself cannot be patented
But you can protect it with a copyright, and the steps would be the same as for registering any other copyright. María Kovesdi recommends consulting and seeking advice from experts in intellectual property.
2. And why not?
To all intents and purposes, an API is software.
And in European legislation, the term software is considered equivocal. The European Patent Office (EPO) refers to "computer-implemented inventions" rather than to actual computer programs.
A computer-implemented invention is anything that implies the use of a computer, a computer network or another programmable apparatus in which one or more of its functions are carried out totally or partially thanks to a computer program.
And by virtue of the European Patent Convention (EPC), a computer program claimed “as such” is not a patentable invention (Article 52 (2) (c) and (3) EPC.
3. Is this the case all over the world?
The legislation is not the same in all countries. Europe has one and the US has another.
This ruling means that developers whose work targets the US market must avoid any API that does not have an explicitly open license.
4. In Europe, specifically:
The legislation also protects computer programs – or APIs in all cases, and in themselves, as intellectual property (copyright); and in some cases, when they form part of an invention, as industrial property (patents).
The Intellectual Property Act defines a computer program (software) and regulates the copyright that protects it according to the following regulation.
5. Of course, with conditions...
The computer program will be protected if it is original.
This means it must be the intellectual creation of its author in order to be entitled to protection.
So the ideas and principles on which any of the elements of a computer program are based, including those that serve as a foundation for its interfaces, will not be protected by copyright.
6. Although you should be aware...
The reality and complexity of technological development is way ahead of the legislative framework, and as these are economic interests we can expect to see an increase in technology-related lawsuits.
According to María Kovesdi, promoting and generating debates around intellectual property in general, copyright, patents and other categories of intellectual property in particular “signals a degree of social maturity, technological development and stakeholder engagement in society”. For this reason she is sure there will be occasion to analyze the proposals involved in building the strategy of the Single Digital Market.
Right now, Spain particularly would be satisfied with a “greater dissemination, knowledge and application of free technologies and free and open programs, to allow any person or organization with talent and with innovative projects and solutions to gain unimpeded access to the sectors demanding APIs”.
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