Software and code
For your research, business, or project, you want to reuse computer code. Or you have programmed something yourself that you want to protect or share. This quick reference guide explains the most important aspects of copyright that you should keep in mind when using software and code.
It will not surprise many people that computer programs are also copyrighted. Although numerous software is available for free online, you often have to pay for programs and distribution is considered digital piracy.
However, software is not protected by copyright by default. Under Dutch case law software must also have an original character, be the result of creative choices and bear the personal stamp of the creator. For example, if you copy a reusable piece of computer code from a website and change one line, it does not mean that you are suddenly the copyright holder.
Nor is the underlying idea of the program copyrighted, but the source code often is. This means that without permission from the copyright holder, you may not distribute or reuse the source code. Provided you obtained the source code legally, personal use is allowed.
Your employer may be the copyright owner of software or code that you have written, based on the employer's copyright (Art. 7 Aw). This may be the case if you have written the program for your work, even if it was created outside of working hours.
Based on the functionality of software, an ingenious programmer can opt for reverse engineering, i.e., systematically finding out the exact working of a program without looking at the code. Article 6 of the Software Directive and Article 45m of the Copyright Act provide that this is not illegal, provided it is intended to achieve interoperability with other computer programs. See also: https://penrose.law/slim-software-nabouwen-juridisch-toegestaan.
While copyright cannot often be claimed over primary data (raw measurements, facts), the way the data are represented or analyzed is often a unique copyrighted work. This can apply to a statistical analysis, a coding scheme for qualitative sources, code that generates a figure, and the figure itself. Again, the unique stamp remains important for copyright to apply. In many cases it is valuable to make code and syntax available as well, as part of a published study for example.
While Creative Commons licenses are popular, for software it is recommended to choose from a variety of existing software licenses. As a result, much (computer) code is publicly accessible and usable, for example through platforms such as GitHub. It is important to note that not all licenses are compatible with each other. When you use someone else's code in your work, or reference it, you will need to take into account the (different) licenses associated with it. On Wikipedia you will find a handy overview to compare common licenses. A term you will also encounter there is copyleft. This is the principle that the software or code is free to use under the condition that new works derived from it also get the same license (similar to CC BY-SA).
You can also patent your software, or have commercial interests with it. This does not have to get in the way of open source. Contact your own AIP or in-house lawyers to learn more about this. Your institution may have policies on this (example TUDelft).
Do you have further questions about this quick reference guide? Please contact one of the members of staff at the Copyright Information Point (AIP) of your institution.