11/18/2023

University of Batna 2
Faculty of Mathematic & Computer Science
Computer Science Departeemnt

Master on Digital Transformation

and Innovation

Digital Law & Regulations Dr Nour El-Houda GOLEA

CHAPTER 3
DIGITAL LAW & REGULATION

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Law: some basic

concepts
COURSE OUTLINE

Digital Law & Regulation

Internet Law

Law of software

LAW: SOME BASIC

CONCEPTS

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DEFINITION

Law can be defined as a system of rules and guidelines that are enforced
through social institutions to govern behavior. It shapes politics,
economics, and society in various ways and serves as a primary social
mediator of relations between people.

OBJECTIVE & SUBJECTIVE LAW

Objective Law
▪ Objective law refers to the body of legal principles and rules that exist independently of individual
beliefs and opinions.
▪ It encompasses the set of laws and regulations established by governing authorities and applicable to
everyone within a particular jurisdiction.
▪ Objective law is impartial and based on societal norms and legal statutes.
Subjective Law
▪ Subjective law pertains to the individual's personal understanding and interpretation of their legal
rights and obligations.
▪ It reflects the perception and beliefs of individuals regarding their rights, often influenced by their
personal experiences, values, and cultural backgrounds. Subjective law is shaped by the individual's
perspective on their legal rights and responsibilities within a specific legal framework.

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OBJECTIVE & SUBJECTIVE LAW

Subjective rights stem from objective
law (the legal framework), which are no
more than privileges granted to an
individual to benefit from an object, a
Objective law value, or a relationship with another

Set of legal rules

Subjective law
Constitution
International treaties
Laws The right to property
Regulations The right to marriage
The right to one's image
It applies to everyone in the same way,
ensuring equality among all citizens Copyright
The rules of objective law are formulated
in a general and impersonal manner. Subjective law is the individual right of each
person. It arises from a legal fact or a legal act.

OBJECTIVE & SUBJECTIVE LAW

objective subjective

Mr. Mohamed buys a new FIAT. 

The speed is limited to 120 km/h on highways.



An automobile, to travel on public roads, must be registered in the name of its

owner, and must be equipped with a circulation permit and license plates. 

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CLASSIFICATION OF LAW
Public law regulates the Private law governs
relationship between individuals relationships between
and the government. individuals.
Public law Private law
• International Law • Contract Law
• Administrative Law • Tort Law
• Constitutional law • Fammily Law
• Criminal law • Employment Law
• Tax law • Land Law
• Commercial Law

CLASSIFICATION OF LAW
▪ Fundamentally, law in general is classified into public and private law.

▪ With the evolution of society also appeared the so-called social law.

▪ It seeks to cover all the law that is associated with human rights.

▪ Social law, rather than starting from the point of equality of men, seeks it as an aspiration. To do

this, it regulates the elements to try to level human beings or seeks to balance inequalities in

relationships.

▪ Among the branches of law found in this classification are the following: Labor Law (when not

considered part of private law), immigration law, agrarian law and law related to social security.

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LEGISLATIONS AND LAWSUITS

Legislations and lawsuits are two important components of the legal system that play distinct yet
interconnected roles in upholding the rule of law and ensuring justice.
Legislations ‫التشريعات‬:
Creating Laws ‫إنشاء القوانين‬: Legislations, typically passed by a legislative body, are responsible for
creating, amending, and repealing laws that govern various aspects of society. These laws can cover a
wide range of areas, including civil rights, criminal justice, business regulations, environmental
protection, and more.
Regulating Conduct ‫تنظيم السلوك‬: Legislations provide guidelines and rules that individuals,
organizations, and government entities must adhere to. They are designed to maintain order, protect
rights, and promote the welfare of society as a whole.
Establishing Frameworks ‫إنشاء األطر‬: Legislations set the framework for the functioning of the legal
system and provide the structure for the administration of justice. They define the procedures for
enforcing laws and resolving disputes.

LEGISLATIONS AND LAWSUITS

Lawsuits ‫الدعاوى القضائية‬:
Dispute Resolution ‫تسوية المنازعات‬: Lawsuits, or legal actions, are formal proceedings initiated by
parties seeking resolution for a specific legal dispute or grievance. They provide a platform for
individuals or entities to seek justice and remedy for perceived legal wrongs.
Enforcing Rights ‫فرض الحقوق‬: Lawsuits are instrumental in enforcing legal rights and obligations. They
allow individuals to assert their legal claims, defend against allegations, and seek legal redress for any
harm or injury suffered.
Interpreting Laws ‫تفسير القوانين‬: Lawsuits often involve the interpretation and application of existing
laws to specific cases. Courts examine the relevant legislations, legal precedents, and arguments
presented by both parties to arrive at a fair and just decision.

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DIGITAL LAW &

REGULATION
“While the Internet and other information technologies are bringing enormous
benefits to society, they also provide new opportunities for criminal behavior.”
Attorney General Janet Reno
(January 10, 2000)

DIGITAL REGULATION
▪ Since the early 1980s, competition has gradually been introduced in the telecommunications

market, first in the UK in 1982 for regulating the market for cellular mobile communications.

▪ In the rest of Europe, mobile communications were opened for competition in 1992.

▪ In 1998, all telecommunications in Europe were de-monopolized and opened for general

competition.

▪ This development and the extensive use of the Internet have generated a demand for regulating

the telecommunications market to make it a level playing field.

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DIGITAL REGULATION
Definition
Regulation of the ICT market is the intervention of governmental, legal, social, economic, or
technological authorities, by rules or procedures, to restrict the freedom of operations for market
participants (in particular, mobile operators, Internet service providers, and application service
providers) and to target the evolution of the market.
The regulations apply to:
▪ fixed and mobile network operators,
▪ user access providers,
▪ Internet service providers,
▪ application service provides,
▪ content providers.

MOTIVES FOR REGULATION

There are several motives for regulation:
▪ To avoid market failure such as formation of monopolies
▪ To foster fair competition
▪ To secure that the users have correct and adequate information about the market
▪ To ensure affordable access to the ICT infrastructure, thereby satisfying collective needs
of the public
▪ To protect individuals against unethical business conduct and abuse of personal data
▪ To promote professional and ethical conduct of market participants
▪ To stimulate peer-based service innovation and development of new technologies

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INTERNET REGULATION
▪ Regulating the Internet may not only be done by laws and legal frameworks.
▪ The pathetic dot theory developed by Lawrence Lessig (Lessig, 1997) defines four
modalities of regulation:

1. Legal
2. Market
3. Technology
4. Society

INTERNET REGULATION
Lessig’s four modalities of regulation.

• How the legal framework in a • How trade, markets, and

jurisdiction is used to economic factors are used to
regulate regulate

Legal Market

Society Technology

• How norms and societal • How the technology is used

factors are used to regulate to regulate

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INTERNET REGULATION
Example: The Four Modalities Applied to the Music Industry
One key problem in this industry is the violation of copyright and illegal downloading and spreading of
music on the Internet. Lessig’s modalities has been employed to regulate the issue.
Regulation by Technology
Regulation by Legal Measures
• In many countries, downloading • The 2000s also saw the emergence of
copyrighted material is illegal by law. technological copyright protection of music and
• People downloading and sharing such other media by which copying a specific CD or
material may be prosecuted and punished DVD was not possible.
according to the laws in their jurisdiction. Regulation by Society
Regulation by Market • In spite of the laws passed to regulate piracy,
• In the 2000s, new services offering access people still in huge numbers continued to
to copyrighted media were launched— download and spread copyrighted material
Spotify, iTunes, and Tidal. illegally.
• These services created a market for legal • This was because the general opinion of the
access to music and contributed to public was not to view free music downloading as
regulating the market. a crime that should be punished.
• Public opinion is a weak regulating force.

DIGITAL LAW
Digital law refers to the legal framework that governs the use, access,
and protection of digital information, technologies, and networks.

It encompasses a wide range of legal principles and regulations that aim

to address the unique challenges and issues arising from the use of
digital technologies, including the internet, social media, e-commerce,
and electronic communications.

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AREAS OF DIGITAL LAW DIGITAL LAW

Cybersecurity and Intellectual Property E-Commerce and

Data Protection Online Contracts

Internet Governance Cybercrime and The law of software

and Regulation Online Misconduct

DIGITAL LAW
Breaking digital law
▪ Hacking and Unauthorized Access

▪ Cyberbullying and Online Harassment

▪ Copyright Infringement and Piracy

▪ Cyber Fraud and Scams

▪ Data Breaches and Privacy Violations

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THE CONSEQUENCES OF BREAKING DIGITAL LAW

DIGITAL LAW

Legal Penalties Civil Lawsuits Criminal

‫عقوبات قانونية‬ ‫دعاوى قضائية مدنية‬ Prosecution
‫المالحقة الجنائية‬

Loss of Restrictions and

Reputation and Sanctions
Trust ‫قيود وعقوبات‬
‫فقدان السمعة والثقة‬

INTERNET LAW
The United Nations Declaration on Human Rights, promulgated by the UN in 1948, articulates the
fundamental rights that every human being is inherently entitled to by virtue of their humanity.
Particularly relevant to Internet law are the following key elements:
▪ The Preamble of the Declaration, especially the second paragraph, emphasizes that human beings have the
right to freedom of speech and belief. It also underscores in the third paragraph that human rights should be
protected by the rule of law.
▪ Member States have committed to working with the United Nations to promote universal respect for and
adherence to human rights and fundamental freedoms.
▪ Article 12 of the Declaration affirms the protection of privacy, stating that no one should be subjected to
arbitrary interference with their privacy, family, home, or correspondence, and that everyone has the right to
legal protection against such interference or attacks on their honor and reputation.
▪ Article 19 is particularly pertinent to Internet usage, as it asserts that everyone has the right to freedom of
opinion and expression. This right includes the freedom to hold opinions without interference and to seek,
receive, and disseminate information and ideas through any media, regardless of frontiers.

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INTERNET LAW
In summary,
The United Nations Declaration on Human Rights upholds fundamental principles that have direct
implications for how human rights are protected and respected in the digital age, including the
realm of the Internet.
These principles underscore the importance of freedom of speech, privacy, and the right to access
and share information, all of which are integral to Internet law and governance.

INTERNET LAW
It is certainly true that the Internet has the potential to fulfill and enhance the right to cultural life
asserted in Article (1), which states:
Everyone has the right to participate in the cultural life of the community, to enjoy the arts and to
share in scientific advancement and its benefits.
Although this Universal Declaration of Human Rights is not legally binding, all 192 members of the
UN have agreed to it because it is an intrinsic document for membership to the UN. In addition, 150
countries have ratified and signed the International Bill of Human Rights, which consists of the
Universal Declaration of Human Rights and two other international treaties:
(1) The International Covenant on Civil and Political Rights (ICCPR, 1966);
(2) The International Covenant on Economic, Social and Cultural Rights (ICESR, 1966).

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INTERNET LAW
▪ Understanding internet law is essential for individuals,

businesses, and organizations that operate online to ensure

compliance with legal requirements and to protect their rights
and interests in the digital space.

▪ As the internet continues to evolve, internet law will continue

to adapt, to address emerging legal challenges and

technological advancements in the online environment.

INTERNET LAW

Online Freedom E-Commerce and Cybersecurity Intellectual Cybercrime and

of Expression: Online and Data Privacy Property Online
Transactions Protection Misconduct

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THE LAW OF SOFTWARE

THE LAW OF SOFTWARE

In today’s digital age, computer software plays a pivotal role in our

lives. From mobile applications to operating systems, software has
become an integral part of our daily routines. With the rapid
advancements in technology, a question arises:

What are the legal mechanisms for software protection?

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THE LAW OF SOFTWARE

Definition of Software:

A collection of instructions, programs, or code that

directs a computer or digital device to perform specific
functions or tasks. It can encompass operating systems,
applications, utilities, and other programs designed to
facilitate various computing operations.

THE LAW OF SOFTWARE

From a legal standpoint, software can be protected

under copyright law, patent law, and trade secret law,
depending on the nature of the software and the
specific legal protections it may be eligible for.

Legal considerations surrounding software often

include issues related to licensing, distribution,
intellectual property rights, and liability for software
defects or malfunctions.

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THE LAW OF SOFTWARE

In legal terms, software is a work of the

mind, protected by the Intellectual Property
Code (IPC), with a title, authors, and
associated rights

THE LAW OF SOFTWARE

Intellectual property IP refers to any creations of the

mind, such as inventions, literary and artistic works,
designs, symbols, names, and images used in commerce.
It is a category of property that includes intangible
creations, and it allows individuals or organizations to
have exclusive rights to the use of their own creations.

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THE LAW OF SOFTWARE

IP
Industrial Property Literary and Artistic
Property
Patents
Copyrights

Industrial Designs
Related Rights

Trademarks

Geographical
Indications

THE LAW OF SOFTWARE

Aspects of the legal protection of software

Trademark
protection

Software
protection

Copyright Patent
protection protection

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The law of software

THE LAW OF SOFTWARE

© Copyright Protection
▪ Copyright is a legal mechanism that grants exclusive rights to
the creators of original works.
▪ It protects various forms of artistic and intellectual
expression, including literature, music, films, and even
software.
▪ The objective of copyright law is to encourage creativity and
innovation by providing creators with the means to control
and profit from their creations.
Source of image : https://www.un.org/fr/file/111115

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THE LAW OF SOFTWARE

© Copyright Protection
▪ In order to provide them with copyright protection, software has been
assimilated to literary and artistic works.
▪ In the same way that the author of a book creates it gradually through
the words, lines, and paragraphs that he writes, the author of a software
creates code that he structures and composes to create his "software
work."

THE LAW OF SOFTWARE

▪ Copyright protects computer software, specifically the program code,
as a "literary work."
© Copyright Protection
▪ Other sorts of copyright work may also be related with some computer
software.
▪ Graphic user interfaces (""GUIs") or portions of them, for example,
may be protected as artistic works
▪ Some animated graphical sequences may be called "films," and music
connected with software (such as games software) may be a copyright
work.
▪ Database rights can also be useful for safeguarding computer
programs.

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THE LAW OF SOFTWARE

© Copyright Protection
▪ In 1980 Congress amended the 1976 copyright Act to include a definition of
« Computer program »
▪ In the third Circuit Court of Appeals case, the court in Apple Computer, Inc v.
Franklin Computer Corp (1983) confirmed that computer programs are in fact
literary works protected under the copyright Act.
▪ The court held that a computer program, “ whether in object code or source
code, is a literary work” and is protected from unauthorized copying, whether
from its object or source code version”.

THE LAW OF SOFTWARE

© Copyright Protection
▪ Copyright protects the form and not the ideas.

▪ This principle means that only the formatting of the software is

protected, not the ideas that it implements.
▪ For example, the idea of software providing road information to
tourists is not protectable.

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THE LAW OF SOFTWARE

© Copyright Protection
The conditions

• The software must • The software must

be an original be written down or
creation of the recorded in some
author and should way.
not be a copy of
existing software.

Originality Tangible

THE LAW OF SOFTWARE

© Copyright Protection

Application of copyright
✓Copyright applies to creative works.

✓It is an exclusive right that is granted to the person who created the work. The work
is protected automatically once it is created.
✓It is not necessary to register a work for it to be protected by copyright.

✓Application of copyright protection does not depend on publishing or being available

to the public.

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THE LAW OF SOFTWARE

© Copyright Protection

Who is the legal owner of the rights?

▪ In most cases, the legal ownership of a software program belongs to the programmer who
created it.
▪ However, if the programmer develops the software while working for an employer, the
employer typically owns the rights, unless otherwise agreed upon between the two parties.
▪ The rights to the software can be freely transferred, enabling the specification of
ownership in contracts between independent programmers and clients.
▪ Companies with software rights can sell those rights to other companies, but such
transactions must be documented in writing in multiple Member States.

THE LAW OF SOFTWARE

© Copyright Protection

Who is the legal owner of the rights?

▪ When one programmer modifies another's program, it is critical to seek approval from
the rights holder. Determining ownership of the modified program can be complex.
▪ It's best to assume that both the original author (or employer) and the modifier (or
employer) hold separate copyrights for the modified program, necessitating permission
from both parties.

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THE LAW OF SOFTWARE

© Copyright Protection
Non-economic rights Name Attribution: The right to be
that are personal to The right of paternity acknowledged as an author of the
the author work
Types of rights

Moral
The right of integrity The right that the work not be
mutilated or distorted

The right of The right to decide what and in

withdrawal what form the work will be
presented.
Economic

THE LAW OF SOFTWARE

© Copyright Protection
Moral

The right of This allows the right holder to

reproduction make copies of the work.
Types of rights

The right of This grants the right holder the

Economic distribution authority to distribute copies of
the work to the public.
The rights that enable
the author or creator The right of public This allows the right holder to
to financially benefit performance present the work in public,
from their work.

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THE LAW OF SOFTWARE

© Copyright Protection

Software copyright exceptions

If you legally obtain a computer program with the rights owner's permission, certain actions are
permitted. Further details are provided.
▪ The use of the software for its intended purpose,

▪ The ability to rectify program faults,

▪ Creating a backup copy for accidental damage prevention,

▪ Conducting research and testing,

▪ The "recompilation right" exclusively relevant to computer programmers.

THE LAW OF SOFTWARE

© Copyright Protection
Q
What occurs when a software license agreement includes clauses that demand the consumer to waive
their rights? Is it accurate that these license terms hold validity?
R
Unfortunately, legal aspects are still ambiguous. While certain restrictions are enforceable, others may
not be, depending on the perspective. For instance, a license limiting software use to a single device is
generally considered legally valid, while a clause that prohibits creating backup copies is typically
invalid. If you have uncertainties, seek advice from a legal professional and consider the license terms
valid until informed otherwise.

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THE LAW OF SOFTWARE

© Copyright Protection
The duration of a copyright’s validity
▪ The duration of protection varies according to the law in force in each country,
depending on who created the work and the type of work itself.
▪ The work is protected throughout the author's life and for 50 years after their
death in countries party to the Berne Convention, or up to 90 years in some
countries (70 years in Switzerland).
▪ Upon the author's death, the economic rights are transferred to their heirs.

▪ If there are multiple authors, the end of copyright is calculated based on the
death of the last surviving co-author.

THE LAW OF SOFTWARE

© Copyright Protection
The duration of a copyright’s validity
▪ If the author is anonymous or has used a pseudonym without anyone knowing
who they are, the duration of copyright is calculated from the moment the work is
published.
▪ The same regime applies if the author is a corporation or an institution. When the
protection period comes to an end, the work falls into the public domain, which
means that everyone can reproduce it freely. However, no one can claim
authorship of a work whose creator has died. It should not be forgotten that an
author's moral rights are unlimited.

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THE LAW OF SOFTWARE

© Copyright Protection
The collective management of rights related to literary and artistic property is
entrusted to the National Office of Copyright and Neighboring Rights (ONDA), a
non-profit association subsidized by the Ministry of Information and Culture.

‫الديــوان الوطنــي لحقــوق المؤلــف و الحقـــوق المجـــاورة‬

L'Office national des droits d'auteur et droits voisins (Onda)

،‫ كاتب‬،‫ مؤلف حوار‬،‫ سيناريست‬،‫ مخرج‬،‫ ملحن‬،‫» كاتب كلمات‬

.. ‫ مؤلف برنامج الكتروني‬، ‫ رسام‬،‫شاعر أديب‬
‫ان كنت مؤلف أي مصنف أدبي أو فني يمكنك االنضمام الى عائلة‬
« .‫الديوان الوطني لحقوق المؤلف والحقوق المجاورة‬

THE LAW OF SOFTWARE

© Copyright Protection

To go further on copyright in Algeria, you must consult the site of

Ministry of Culture and Arts.

https://www.m-culture.gov.dz/index.php/fr/office-national-des-droits-
d%E2%80%99auteur-et-droits-voisins

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THE LAW OF SOFTWARE

© Copyright Protection

References

1. https://www.pnst.cerist.dz/droit.pdf
2. https://www.droit-afrique.com/upload/doc/algerie/Algerie-
Ordonnance-2003-05-droits-auteur.pdf
3. https://www.asjp.cerist.dz/en/downArticle/523/7/2/228610

THE LAW OF SOFTWARE

© Copyright Protection
License agreement
▪ Article L. 335-2 of the Intellectual Property Code states: "Any person who uses,
copies, modifies, or distributes software without explicit authorization from the
holder of the economic rights is guilty of infringement and liable to three years'
imprisonment and a fine of 300,000 euros."
▪ If there is no explicit right granted, using software constitutes infringement.
▪ [CPI France:
https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000032655082
]
▪ Licenses are contracts that protect authors, users, and potential collaborators in
development. They grant rights and often impose obligations that must be
adhered to.

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THE LAW OF SOFTWARE

© Copyright Protection
License agreement
▪ A software license agreement is a legal contract between the software
developer or vendor and the end-user. It outlines the terms and conditions
under which the end-user may use the software.
▪ This agreement specifies the rights and limitations regarding the
software's use, distribution, modification, and any associated liabilities.
▪ Understanding and adhering to the terms outlined in the software license
agreement are crucial for both parties to ensure compliance with legal
obligations and avoid potential disputes.
▪ Indeed, among all the documents provided with software, the license
agreement is the only legal proof that you are entitled to use the software.
That is why it is essential to keep the license agreement as long as you
possess the software.

THE LAW OF SOFTWARE

© Copyright Protection
License agreement

▪ Types of Licence agreement

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THE LAW OF SOFTWARE

© Copyright Protection
License agreement

THE LAW OF SOFTWARE

© Copyright Protection
License agreement
Free licenses
▪ Free licenses offer:
▪ the possibility to use the work for any purpose;
▪ the possibility to study the work;
▪ the possibility to redistribute copies of the work;
▪ the possibility to modify the work and publish these modifications.

▪ In some cases, this license may require that any copy or derivative work be distributed under the
same license. This is known as copyleft, or sharing under the same initial conditions.
▪ The development of open software accelerated in 1991 when a Finnish student, Linus Torvalds,
launched a project called Linux, inviting all voluntary programmers to participate via the Internet.
The success of this approach destabilized commercial providers.

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THE LAW OF SOFTWARE

© Copyright Protection
License agreement
Free licenses
▪ Open software is not the product of a single company (or individual);

▪ It is created by a whole community composed of companies (Mandriva, Redhat, Canonical),

associations (Free Software Foundation, April, Aful), and individuals. It belongs to everyone.

▪ Without exception, anyone can contribute by reporting bugs, suggesting ideas, or programming

for those who know how to code.

▪ All actors in the open software world, whether they are companies, developers, or simple

users, are all equal and enjoy the same rights.

THE LAW OF SOFTWARE

© Copyright Protection
License agreement Open World
Free licenses Open
Softwar
e

Listen

Users Developers

Help & suggest ideas

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THE LAW OF SOFTWARE

© Copyright Protection
License agreement
Proprietary Licenses (Closed-Source)
▪ All rights are reserved by their holder.
▪ This is the case for the majority of commercial software.
▪ In almost all cases for these software:
▪ The client owns only the medium, not the software it contains;
▪ The supplier can stop maintaining the software at any time.
▪ The concept of proprietary software is complementary to that of free software. Proprietary
software is defined as non-free software.
▪ In the most common case, the purchaser of proprietary software must accept an End-User
License Agreement (EULA) that gives them only the right to use a single copy of the software.

THE LAW OF SOFTWARE

© Copyright Protection
License agreement
Proprietary Licenses (Closed-Source)
▪ Developers have the power to create their software as they wish, and users have only the choice to

accept or refuse these software products.

▪ If a software crashes, you are forced to wait for the company to fix the bug, hoping that they will do

it quickly and not charge for the correction.

▪ These companies have all the power over their users, who themselves are powerless.

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THE LAW OF SOFTWARE

© Copyright Protection
License agreement
Company Consumer
Proprietary Licenses
(Closed-Source)
Accept

Closed-
Users
Source
Sell

Power Powerlessness

THE LAW OF SOFTWARE

© Copyright Protection
License agreement

1. The freedom to run the program for any

purpose,
Adherence to
At least one of 2. The freedom to study how the program these four
these actions is works and adapt it to one's needs, freedoms.
prohibited or
limited by the 3. The freedom to redistribute copies,
owner.
4. The freedom to improve the program and
release those improvements (and for this,
access to the source code).

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THE LAW OF SOFTWARE

© Copyright Protection
License agreement

Question:
Specify the advantages and disadvantages of each type of license?

The law of software

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THE LAW OF SOFTWARE

℗ Patent Protection
▪ "Despite the fact that copyright is the 'natural' protection for software, it is increasingly becoming
the subject of patent applications.
▪ A patent is defined as a “ technical solution to a technical problem (such as ABS brakes). The
invention must be feasible and not consist of the statement of an abstract principle; hence, an idea
cannot be patented, only the means to materialize these ideas can be patented.”
▪ Patents can only be obtained for inventions, which are technical solutions to technical problems.
They can generally be obtained in any technological field. Indeed, the technical nature is what
distinguishes objects protected by patents from objects protected by other intellectual property rights
(literary and artistic works, trademarks, designs, etc.).

THE LAW OF SOFTWARE

℗ Patent Protection
Categories of Inventions

• Concerns a specific physical entity with a particular

Product mechanical composition or chemical structure.
invention

• Involves an intangible method, a way of doing

something, a formula, a sequence of operations (or
Process even a single operation) that leads to a known or new
invention result or product.

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THE LAW OF SOFTWARE

Novelty
℗ Patent Protection • The invention must be new and not part of the existing body
of knowledge in its field. This means that the invention
should not have been publicly disclosed or patented before
Conditions the filing date of the patent application.

Susceptible to industrial application

• It must be capable of being manufactured or used in any
type of industry.

Involve inventive activity

• It must not result in an obvious manner from the techniques
known to a person skilled in the art.

THE LAW OF SOFTWARE

℗ Patent Protection
Formalities
▪ Unlike copyright (which is acquired systematically, free

of charge, and without formalities) patents are obtained

only through the filing of an application, adherence to a
procedure, and the payment of fees.

▪ The patent is further maintained annually by the payment

of "annuities."

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THE LAW OF SOFTWARE

℗ Patent Protection
There are three possible routes for filing a patent:
1. National filing: Filing a patent application directly with the national patent office of the specific
country where protection is sought. For example, filing a French patent application with the
French National Institute of Industrial Property (INPI).
2. European filing: Filing a patent application with the European Patent Office (EPO) for a
European patent. This provides protection in multiple European countries that are part of the
European Patent Convention (EPC), which currently includes 38 member states.

3. International filing (PCT): Filing an international patent application under the Patent Cooperation
Treaty (PCT) with the The PCT application does not grant a patent but allows the applicant to seek
patent protection World Intellectual Property Organization (WIPO) in multiple countries by filing a
single international application. The PCT process provides a centralized and streamlined approach
before entering the national phase in individual countries.

THE LAW OF SOFTWARE

℗ Patent Protection

Question:
What is the patent office in Algeria, and what is the procedure to obtain a
patent?
Solution: https://www.inpi.fr/sites/default/files/fiche_pi_algerie_2021.pdf

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THE LAW OF SOFTWARE

℗ Patent Protection
The legislative texts traditionally provide lists of elements that are not considered inventions and,
therefore, cannot be the subject of patents.
Not patentable:
• Scientific discoveries (but their applications may be)
• Aesthetic creations
• Plans, principles, and methods, rules of games
• Presentations of information
• Computer programs
• Animal breeds or plant species
• Treatment and diagnostic methods for humans or animals.

THE LAW OF SOFTWARE

℗ Patent Protection
▪ The EPO (European Patent Office ) does not grant patents for computer programs or business
methods that do not provide any technical contribution.
▪ Computer programs as such are excluded from patentability.
In accordance with this law, a computer program is not patentable if it does not bring about an
'additional technical effect' that goes beyond the technical interactions inherent between software
and hardware.
On the other hand, an invention implemented by a computer (even in the form of a computer
program) that can provide this additional technical effect may be patentable, provided it meets
other patentability conditions, such as novelty and inventive step.
In this case, it will be recognized as providing a technical solution to a technical problem.

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THE LAW OF SOFTWARE

℗ Patent Protection
▪ Software can initially be the subject of a patent when it pertains to an object incorporating software
or a technical process whose execution is carried out through software ➔ the software is then only
part of the targeted invention.

▪ An exemplary case of this type of scenario is the 'ABS' type braking system seen in automobiles,
which is electronically managed by integrated software.

▪ However, the EPO goes further and accepts the patenting of software, even when installed on
computers as 'conventional' programs, provided that their effect is a technical effect going beyond
the effects resulting from the use of software on the computer."

THE LAW OF SOFTWARE

℗ Patent Protection
Ownership of the patent

▪ The right to a European patent belongs to the inventor or his successor in title.
▪ According to the EPO, if the inventor is an employee, the right to the European patent is determined
by the law of the state in which the employee carries out his principal activity.

▪ In the absence of contractual clauses, case law makes a distinction between service inventions,
mixed inventions, and free inventions.

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THE LAW OF SOFTWARE

℗ Patent Protection
Ownership of the patent

Service inventions Free inventions Mixed inventions

• These are inventions made in
the performance of the
creative task explicitly or
implicitly assigned to the
employee by the employer.
These inventions are
automatically considered the
property of the employer.
• These are inventions made • These are inventions that do
by the employee outside of not fall within the scope of
his employment activities the employee's assigned
and with his own resources. tasks but were made using
These inventions are material or intellectual
considered solely the resources provided by the
property of the employee. employer. It will be up to the
judge to settle the dispute
based on the characteristics
of the specific case.

The law of software

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THE LAW OF SOFTWARE

™ Trademark Protection
▪ The trademark is a distinctive sign that allows for the identification of the origin of a product or
service.
▪ The purpose of the trademark is to ensure that anyone purchasing a product or service from a
specific brand can be confident that another product or service bearing the same mark comes from
the same manufacturer or service provider.
▪ It also serves an advertising function, as a person who has been satisfied with a product or service
from a specific brand is likely to seek the same product and/or service and recommend it.

▪ Therefore, trademark law is a right that grants its holder exclusivity in the use of the trademark in
business for specific products or services.

THE LAW OF SOFTWARE

™ Trademark Protection
Any sign capable of graphic representation can become a
trademark if it serves to distinguish products or services:
▪ A verbal sign (pronounceable): Yahoo, Disney, Lacoste
▪ A figurative sign (LOGO) (Renault's diamond, Lacoste's
crocodile)
▪ A complex mark: formed by the combination of elements,
such as a logo and a verbal sign (crocodile + Lacoste)
▪ A slogan: "Lacoste Life is a beautiful sport"
▪ A sound: the melody "dim," the jingle of a radio station
▪ A three-dimensional shape: the shape of Toblerone
chocolates
▪ A color shade: yellow

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THE LAW OF SOFTWARE
™ Trademark Protection
Example of Trademark
THE LAW OF SOFTWARE
™ Trademark Protection
Lawfulness of the
Trademark
1. Not Contrary to Public Order and Good
Morals: The trademark should not go
against public order or accepted moral
standards.
2. Compliance with Laws or Rules: It
should not violate specific laws or
regulations.
3.Non-Deceptive: The trademark must not
be deceptive and should not mislead the
public.
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Characteristics of the trademark
Distinctiveness of the
Trademark
1. Originality: The chosen sign for the
trademark should be original, avoiding
common, usual, or descriptive terms.
2. Availability: The trademark must be
available, meaning it does not infringe
on existing prior rights. This often
involves conducting a thorough search
for prior trademarks or similar rights.
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THE LAW OF SOFTWARE

™ Trademark Protection
Conditions of validity:
Availability: must not infringe on prior rights, including:
✓trademarks and other distinctive signs
✓copyright, personality rights of a third party,
✓right to the name, reputation of a territorial community,
✓right to a geographical name constituting a protected geographical indication or an
appellation of origin,
✓names of websites, associations, etc.

COMPARAISON
© ℗ ™
Object of Literary and Artistic Inventions, meaning technical The signs (words, logos, etc.) used to distinguish
protection Works (including solutions to technical problems one product or service from another product or
computer (inventions implemented by service.
programs). computer programs).

Scope of The original The technical processes The use of the sign to distinguish one or more
Protection elements of the (functionalities). specific products or services.
form. (the code))
Conditions • Formatting • Novelty • Availability: must not infringe on prior rights
• Originality • Inventive step
• Industrial applicability

Duration 50 years after the Maximum 20 years. 10 years – renewable indefinitely

death of the author

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REFERENCES

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