Software copyright protection in the EU comes from Directive 2009/24/EC: a computer program is protected as a literary work from the moment it is written, with no registration, provided it is the author’s own intellectual creation. What the law protects is the expression of the program, meaning its source and object code and its preparatory design material, not the ideas, logic or interfaces behind it. This guide is for software companies, including Latin American tech firms selling into Europe, that need to know what their code is worth legally and who actually owns it.
Key takeaways
- Code is protected as a literary work in every EU Member State, automatically and without formalities.
- Ideas and principles, including those underlying a program’s interfaces, are not protected by copyright.
- Lawful users may run, correct, back up, study and, within strict limits, decompile a program without permission.
- Code written by employees as part of their duties belongs to the employer; code written by contractors does not, unless a written assignment says so.
- Registration is optional, but in Spain it creates a presumption that the registered rights exist and belong to the registered owner.
What does Directive 2009/24 protect?
Article 1 of Directive 2009/24/EC of 23 April 2009 requires Member States to protect computer programs by copyright as literary works within the meaning of the Berne Convention. Three points define the scope:
- Protection covers the expression in any form of a computer program: source code, object code and the preparatory design material that leads to it.
- The only test is originality, meaning the program must be the author’s own intellectual creation. No aesthetic or qualitative criteria may be applied.
- Ideas and principles underlying any element of the program, including its interfaces, are excluded.
Spain sets out the equivalent rules in Title VII of the Spanish Intellectual Property Law (TRLPI). Article 96 goes slightly further than the Directive: technical documentation and user manuals receive the same protection as the program, and protection extends to successive versions and derived programs. The same article recalls that a program forming part of a patent or utility model may also be protected through industrial property.
What isn’t protected: ideas, functionality and interfaces
The line between expression and idea is where most software disputes are decided. A competitor that rewrites the same functionality with its own code does not infringe copyright, even if the result does the same thing. What it cannot do is copy your code, or translate or adapt it, without authorisation.
| Element | Copyright under Directive 2009/24? | Other route to consider |
|---|---|---|
| Source and object code | Yes, if original | Trade secrets for unpublished code |
| Preparatory design material | Yes (art. 1(1)) | Contractual confidentiality |
| Technical documentation and manuals | Yes in Spain (TRLPI art. 96.1); as literary works elsewhere | General copyright on texts |
| Ideas and principles, including those behind interfaces | No (art. 1(2)) | Patents, where there is a technical invention |
| Product name and logo | No | Trademarks |
| Know-how and unpublished algorithms | No, as ideas | Trade secrets and confidentiality agreements |
Article 8 of the Directive confirms that copyright operates without prejudice to patents, trademarks, unfair competition, trade secrets and contract law. In practice, a software company’s protection is a stack: copyright for the code, trademarks for the brand, confidentiality for what is not published and, occasionally, patents.
What can users do without your permission?
Article 4 reserves to the rightholder reproduction, adaptation and distribution, including rental. The first sale of a copy in the EU by the rightholder exhausts the distribution right in that copy, except for rental. Article 5 and Article 6 then set the exceptions:
- Normal use: the lawful acquirer may load, run and correct errors where necessary to use the program for its intended purpose, unless specific contractual provisions say otherwise.
- Back-up copy: a person with a right to use the program may make one where necessary, and a contract cannot prevent it.
- Observe, study and test: a licensee may examine how the program works to determine its underlying ideas while loading or running it.
- Decompilation for interoperability: allowed only when indispensable to make an independently created program work with others, the information is not already readily available, and the acts are confined to the necessary parts. The information obtained cannot be used to build a substantially similar program.
Under Article 8, any contract term contrary to the decompilation rule or to the back-up and study exceptions is null and void. Blanket bans on reverse engineering copied from other legal systems will not hold beyond what these articles allow.
Who owns the code: employees, contractors and group companies
The author is the natural person or group of persons who created the program (Article 2). When an employee creates a program in the execution of their duties or following the employer’s instructions, the employer alone is entitled to exercise all economic rights, unless the contract provides otherwise. Spain’s article 97.4 TRLPI says the same and expressly covers both source and object code.
The Directive says nothing about freelancers and outsourced development, and that gap causes the most trouble. In Spain, without the employee rule, the general transfer rules of the TRLPI apply: any assignment must be in writing (art. 45), and if the contract does not state the duration or territory, article 43 limits the transfer to five years and to the country where it was made. A development agreement that simply says the client “owns the deliverables” may give far less than expected.
Latin American groups face a further layer. Mexico’s Federal Copyright Law (LFDA) gives the employer the economic rights in software created by employees unless agreed otherwise (art. 103), and Brazil’s Software Law 9.609/1998 assigns them to the employer or the party contracting the services when development is the purpose of the relationship (art. 4). The rules are similar, but not identical, so a code base written by teams in several countries should have its chain of title checked country by country before it is licensed or sold in Europe.
Duration also depends on who the author is. In Spain, economic rights last for the author’s life plus 70 years when the author is a natural person (art. 26), and 70 years from lawful disclosure, or from creation if undisclosed, when the law treats a legal person as author (art. 98).
Should you register your software?
No registration is needed for protection. It still has value as evidence. Under article 101 TRLPI, rights in programs, their successive versions and derived programs can be entered in the Spanish Intellectual Property Registry, and article 145 provides that registered rights are presumed, unless proven otherwise, to exist and belong to the registered owner. The Registry is public, but the regulations limit which elements of a registered program can be consulted, which matters for companies worried about exposing code.
Our recommendation is to register each major version you intend to license or enforce in the EU, and to keep dated internal evidence of development (repository history, design documents, contracts) for everything else.
What this means for your business
- Map the code base: which modules are your own, which are third-party or open source, and who wrote each part.
- Check every contributor’s status. Employees are generally covered; contractors, agencies and founders who wrote code before incorporation usually need a written assignment.
- Draft assignments that state duration, territory and modes of exploitation expressly, to avoid the limits of article 43 TRLPI.
- Review your EU licence terms against articles 5, 6 and 8 of the Directive so they do not include unenforceable clauses.
- Decide what you will register and where, and protect the product name as a trademark.
If your software is developed between Latin America and Europe, our team for software copyright protection in the EU and Latin America can review the chain of title and the registration plan as one exercise.
Where software companies get copyright wrong
- Assuming the client owns what it paid for. Payment does not transfer copyright; without a compliant written assignment, the developer may still hold the rights.
- Relying on copyright to protect functionality. Competitors can reimplement the same features legally; trade secrets and patents may matter more for the core logic.
- Copying licence terms from another jurisdiction. Clauses that forbid back-up copies or all decompilation are void in the EU.
- Ignoring group structure. Code developed by a Mexican or Brazilian subsidiary belongs to that subsidiary until it is transferred within the group; due diligence will ask for those documents.
- Leaving evidence for later. Reconstructing authorship during a dispute or acquisition is slow and costly.
Where a transaction or licence depends on clean title, our IP licensing and assignment team can prepare the agreements that close the gaps.
Frequently asked questions
Is software protected by copyright in the EU without registration?
Yes. Under Article 1 of Directive 2009/24/EC, every Member State protects computer programs as literary works, and no formality may be required. The program must be original, meaning its author’s own intellectual creation. Registration is optional, although in Spain it gives a presumption that the registered rights exist and belong to the registered owner.
Are user interfaces and functionality protected by software copyright?
Not as such. The Directive excludes ideas and principles underlying any element of a program, including those underlying its interfaces. Copyright protects the code that expresses the functionality, not the functionality itself. A competitor that writes its own code to achieve the same result does not infringe, so the core logic may need trade secret or patent protection.
Who owns code written by a freelance developer in Spain?
The developer, unless there is a written assignment. The employer rule in article 97.4 TRLPI only covers employees. For contractors, the general rules apply: the transfer must be in writing and, if duration and territory are not stated, it is limited to five years and to the country where the contract was made. Clear drafting avoids that outcome.
Can IP Global Guard protect our software in Europe and Latin America?
Yes. We review authorship and ownership across your teams, draft or correct assignments and licences, and prepare registrations in Spain, coordinating qualified local correspondents for Latin American and African registries. You work with one point of contact and one strategy for the whole code base, instead of separate advisers in each country.
How IP Global Guard protects your software
Software value depends on two things a buyer or licensee will check: that the code is protected and that your company owns it. IP Global Guard, the intellectual property services line of META Channel Corporation Limited, handles copyright, licensing and trademark protection for technology companies across more than 25 jurisdictions in Europe, Latin America and Africa, with one strategy and one billing relationship.
Tell us where your code is written, which markets you sell into and how your developers are engaged. We will identify the ownership gaps, propose the registrations that are worth making and coordinate the work from a single point of contact. Send us your software protection questions.
This article is general information, not legal advice, and does not replace an assessment of your specific situation.
Sources
- Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs (articles 1, 2, 4, 5, 6 and 8), legislation.gov.uk
- BOE, Royal Legislative Decree 1/1996, Spanish Intellectual Property Law (consolidated text, last updated 30 March 2022)
- Mexican Chamber of Deputies, Federal Copyright Law (last amended DOF 14 May 2026)
- Presidency of Brazil, Law 9.609 of 19 February 1998 on software
