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IT Law Services
Software copyright
Few areas of intellectual property generate as much confusion and debate as the protection of software. At LUTIN IP, we closely monitor developments in case law and legislation relating to software rights—an area that has become one of our core specialties.
Computer programs are protected automatically by copyright, just like artistic works.
However, copyright protects only the expression of the program—its code, documentation, and preparatory design materials—not its underlying function or algorithms.
This means that another program performing the same function or algorithm, but written using different instructions, will generally not infringe copyright unless it constitutes a literal transcompilation (rewriting the program in another language).
In some countries, additional copyright protection may also extend to:
flowcharts or structural diagrams underlying the software
elements of the graphical interface (e.g., unique visual layouts, original icons, menu titles)
Because copyright applies from the moment a software is created, no registration is required.
However, in the event of a dispute, the author must prove that their software existed before the alleged infringer’s version. Maintaining strict version control is therefore essential: it helps establish when specific parts of the code were created.
Time stamping can be an effective way to establish a verifiable creation date for different versions of a software application.
Software protection varies by jurisdiction, and the conditions are often strict. For this reason, it is essential to determine, on a case-by-case basis, which elements are protected and in which countries.
It is also crucial to ensure that all developers—employees, contractors, freelancers, or collaborators—have their rights properly assigned. Although some jurisdictions automatically transfer employee-created software to the employer, the applicable law varies significantly. When in doubt, appropriate written agreements, including copyright transfer clauses, are essential.
LUTIN IP can help you assess legal risks, ensure proper transfer of rights, and establish a solid contractual framework.
Contact us for guidance on copyright strategy and support in drafting or reviewing assignment and licensing agreements.
Patents for software
Today, most countries recognize that software and computer-implemented inventions can be patented. Patent protection is often much broader than copyright, as a patent can protect the function or technical contribution of a software solution—independent of the specific code used.
For third parties, patents offer an additional advantage: they are searchable, allowing companies to assess freedom to operate.
In Europe and Switzerland, a software-related invention must produce a technical effect to be patentable, and the outcome depends heavily on how the claims are drafted.
The United States takes a more flexible approach and may also grant patents for software that essentially implements business methods.
Patents are not limited to proprietary software. Many applications distributed under open-source licenses are also protected by patents. In such cases, patents may even be essential to ensuring that the terms of the open-source license are respected.
Software patents are not reserved for large corporations. Many SMEs and start-ups rely on patents to prevent competitors—particularly those with greater distribution power—from copying their innovations and scaling them without compensation.
Licensing
Because computer programs and their interfaces are protected by copyright—and in some cases also by software patents—a license is required for their use.
A license is a contract, and must therefore be drafted with care. It needs to accurately reflect the parties’ intentions, remain flexible enough to accommodate future developments, and ensure that both the licensor’s and licensee’s rights are fully protected. Intellectual property law also requires specific legal wording to guarantee the validity and enforceability of licensing terms.
In some cases, companies may choose to distribute software under a free or open-source license. These standardized licenses are governed by specific rules designed to guarantee users’ freedoms. However, because they cannot be modified and may conflict with existing contractual obligations, selecting an open-source license requires a careful and detailed analysis.
Professional guidance is essential—both for drafting customized licensing agreements and for determining whether an open-source license is appropriate. Our team can support you in evaluating your options and preparing the right licensing framework for your situation.
Free and Open Source Licenses
Most software projects rely on pre-existing components—such as libraries, frameworks, or system modules. This reuse accelerates development, reduces cost, and ensures compatibility and interoperability. Free and open-source software (FOSS) plays a central role in this process and is a major driver of innovation.
However, “free” does not mean without obligations. Each open-source component comes with its own license terms, and these conditions must be respected whether the software is used internally or distributed. Combining multiple components can also create license conflicts or incompatibilities—particularly when specific open-source licenses require that derivative works be redistributed under the same open terms (often referred to as “contamination” or copyleft obligations). This can directly impact commercial exclusivity or product strategy.
Working with a specialist helps identify and manage the legal risks associated with open-source use. If issues arise—such as conflicting licenses or potential contamination—solutions can include adjusting the architecture, replacing components, or establishing an appropriate contractual framework.
We can guide you through these decisions to ensure the legal safety and long-term success of your software projects.
IT Innovation
Law and innovation are often portrayed as opposites, “innovation versus regulation.” In reality, the law is not as rigid as it may seem. While innovation pushes boundaries and explores areas that existing rules may not fully cover, legal frameworks frequently adapt, especially in the field of information technology.
To support an innovative product or service, it is essential to analyze which laws may apply and how they could impact the project. For example, a new messaging or communication app may fall under telecommunications regulations, require a tailored data protection policy, or even need assessment under medical device regulations, depending on its features.
If an innovation appears to fall outside current legal structures, it may be necessary to consult regulatory authorities to clarify the appropriate compliance pathway.
We guide you through this legal and regulatory assessment—helping you understand applicable laws, anticipate required formalities, and navigate the administrative steps needed to bring your innovation to market safely and successfully.
Migration to the Cloud
Cloud-based services—such as Google Drive or Microsoft 365—are increasingly popular due to their scalability, reduced hosting costs, and ease of deployment. Moving your services to the cloud can be a strategic choice, but it brings both technical and legal challenges. The guarantees offered by your cloud provider must align with the commitments you have already made to your customers.
A proper migration requires a thorough due diligence process to understand existing contractual obligations. At the same time, you must review the regulatory requirements that govern your business to ensure that the new cloud architecture complies with the law. For example, some industries restrict data hosting outside national borders.
Once these assessments are complete, the findings must be compared with the cloud provider’s contractual terms. This helps determine whether the service is suitable as-is, whether contract negotiations are needed, or whether a hybrid model combining traditional servers with cloud hosting would be more appropriate.
We support you throughout your cloud migration journey, helping you evaluate technical suitability, review or adapt relevant contracts, and ensure that your transition is secure, compliant, and aligned with your project goals.
Setting Up Services in the Cloud
As more companies build offerings on cloud-based architectures—such as data hosting or online service platforms—they must navigate a range of regulatory requirements. Certain services carry specific legal obligations. For example, acting as a hosting provider is a regulated activity at both international and regional levels. In some cases, depending on the nature of the service and relevant laws, a business may need to register as an electronic communications operator.
Additionally, the planned security measures, especially those involving cryptography, may trigger export control regulations that must be closely reviewed.
We support you throughout the development of your cloud-based services by identifying the regulatory framework that applies to your solution and guiding you through any necessary declarations, compliance steps, or administrative formalities.
GDPR and DPA Compliance
The UK and Switzerland have revised their data protection laws, which now closely align with the European Union’s GDPR (General Data Protection Regulation 2016/679). As a result, many Swiss companies must comply with GDPR rules even if they are not directly within its territorial scope. We help you achieve regulatory compliance by guiding you in establishing a practical governance framework and supporting you in reviewing and negotiating Data Processing Agreements (DPAs) with your customers and suppliers.
Although the GDPR was adopted in 2016 and enforced in 2018, its interpretation continues to evolve through new court rulings and regulatory opinions. The GDPR applies to any Swiss company offering services to EU residents, and even beyond this direct application, aligning with GDPR requirements often ensures compatibility with other regional regulations.
Because of ongoing legal developments, earlier compliance assessments may now be outdated. Regular reviews of activities involving personal data are strongly recommended. In practice, the DPA is the cornerstone of GDPR compliance, ensuring a consistent chain of obligations from service providers to end users. It is essential to verify that suppliers provide adequate guarantees so you can confidently meet your own commitments.
We assist with all data protection matters, including the review, drafting, and negotiation of DPAs, ensuring your business remains legally secure and compliant.
