Cork Open Coffee David Reilly 24 July 09

CORK OPEN COFFEE 24 July 2009 David Reilly Solicitor Reilly & Co Commercial and Technology Law Phone +353 (0)23 88 64887 Mobile +353 (0)86 252 9483 Email [email_address] Twitter @commtechlaw The Creation, Protection and Exploitation of Software www.dreilly.ie

What this talk covers
1. Creation
Legal Framework
Requirements for Protection
Issues Surrounding Start-Ups
Software Development Agreements – Key Points
Investors and Exit Strategy
2. Protection
Types of IP owned in Software
How to Protect Them
3. Exploitation
Joint Ventures – Key Points
Software Licensing Agreements

1. Creation
The Legal Framework
The Law
The Software Directive 91/250/EEC which is implemented by Part II of the Copyright and Related Rights Act 2000 (“the Act”) granted copyright protection to computer programs as literary works.
Section 17 of the Act states that: “Copyright is a property right where the owner of the copyright in any work may undertake or authorise other persons in relation to that work to undertake certain acts restricted by way of copyright”.
Section 17(3) states that: “Copyright shall not extend to the idea and principles which underlie any element of a work”

1.Creation
Therefore, copyright deals with the expression of an idea and not the idea itself – an idea not expressed remains just that, an idea!
Copyright as the name suggests, is a right to prevent copying – it is not a monopoly v trademarks and patents.

1.Creation
Requirements for Copyright protection
Originality
Case of Computer Associates v Altai and the 4 pronged test
Is the plaintiff’s work protected by copyright?
Are there similarities between the Plaintiff’s and the Defendant’s work?
Are the similarities the result of copying?
If the copying is found, does it constitute a substantial part of the Plaintiff’s work?
Note: Clean Room Environments……

1.Creation
Ownership
First author is normally first owner
Employers v employees and ownership
Restrictive covenants in employment contracts
Breach of confidence
Independent contractors and ownership

1.Creation
Duration
Expires 70 years after the author’s death
Restricted acts
Copying
Making available to the public
Adaptations

1.Creation
Issues Surrounding Start-Ups
Name of the business – CRO+BNA+Domain names
Vehicle chosen
Commercial contracts generally
Subsription and shareholder agreements
Terms and conditions of business (on-line/off-line)
Lease agreements
Licences in and licenses out
Software and development agreements
Service agreements

1.Creation
Software Development Agreement - Key points
Scope and Specification
Cost and when paid
Acceptance testing
Milestones for the above
Ownership and licensing of software (scrutinised by VCs and Investors)
Restrictions
3rd party software
Warranty period
IP indemnity and Warranties generally
Maintenance costs/fixes/upgrades/response times

1.Creation
Investors and the Exit Strategy
VCs and other investors – expectations
Exit strategies – know the animal
Due Diligence Procedures – what are they? Prepare for them!
Heads of Agreement – note: “rowing back” and “family silver” and legally binding or not?
Investor Documentation e.g. Shareholder and Subscription Agreements, Investor Agreements etc.

2.Protection
Types of IP owned in software
Copyright
Database Rights
Design Rights
Patents
Trademarks – Registered and Unregistered
Domain names – not strictly IP

3.Exploitation
Joint Ventures – Key Points
Normally an alternative to Licensing or Acquisition
Corporate Vehicle or Collaboration?
IP ownership (“bucket theory”)
Exploitation
Termination

3.Exploitation
Software Licensing Agreements – Key Terms
B2B or B2C – fundamentally important for all contracts
Definition of the “Software”
Specification
Type of licence provided – Restrictions? Sublicences?
Term
Payment
Warranties and indemnities – what are they and what is the difference?
Intellectual property
3rd party licences
Maintenance
Exclusions and limitation of liability

CORK OPEN COFFEE www.dreilly.ie David Reilly Solicitor End! Thank you for your attention Any questions?

Cork Open Coffee David Reilly 24 July 09

by Gordon Murray on Jul 24, 2009

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Cork Open Coffee David Reilly 24 July 09 — Presentation Transcript