Software is a copyrighted work under the Copyright Act. Intellectual property refers to the legal rights that protect the creations of the mind, and this includes software. In the context of the UPV, the results of research, development or innovation generated by university staff are susceptible to legal protection and economic exploitation.

Unlike the results that can be protected by industrial property titles, the existence or not of exploitation rights on a developed software is a direct consequence of its creation, without the need for any external validation in an authorized office as in the case of patents. Therefore, the mechanisms to “protect” the intellectual property rights of software consist of means to prove authorship (e.g. an article). Software registration is one of these mechanisms, since registration constitutes proof of the existence and ownership of the software. To the extent that it reinforces protection, it provides greater security at the time of transferring the software.

According to the Regulations for the Protection and Transfer of Industrial and Intellectual Property Rights in its article 38, it is only mandatory to register the software (register it) when it is going to be commercially exploited, understanding by commercial exploitation the fact that it is going to be licensed to third parties (whether they are licenses of use, of distribution, as prior knowledge in contracts or projects, license to spin-off…). 

You must formally communicate to the UPV that you have developed software that you consider susceptible to protection or exploitation by filling in the official software communication form, available at intranet. Include a functional technical description, a copy of the source code and any complementary documentation (user manual, diagram, etc.) Clearly identify all the people who have contributed intellectually (authors) and their work or contractual relationship with the UPV or other entities. Collect in advance all the information you are asked for as the form cannot be saved.

1. General software data:Name of the software, brief description of what the software does and what problem it solves, version (if applicable), what business model is proposed to be carried out with the software.
2. Development context:
   • Authorship: Full name of each person who has participated in the creation of the software, whether from the UPV or external. Link with your entity. It will be necessary the signature of all authors at the end of the application. Identify if there has been participation of other entities in its creation.
   • Origin: Project in which it has been developed (specific key, title and financing entity if applicable).
   • Technical development environment and dependencies: Programming languages used. Development tools or environments (e.g. MATLAB, LabVIEW, Unity…), third-party libraries or components used, including the type of license (MIT, GPL, Apache, etc.) they have.
3. Technical documentation to be attached:Descriptive memory of the software functionality, user manuals and installation requirements. Screenshots, videos, functional schematics or diagrams (optional but recommended). Software source code (preferably in compressed format).

You can find more details of what you will be asked for in this document.

In the strict sense of the Intellectual Property Law (LPI), only the person who writes the code could be considered as the author, making a parallel with the creation of literary works;

However, the law establishes in its article 96 what is understood as software and therefore broadens the concept of author.  

An author is considered to be any person who has contributed intellectually to the development of the software, whether in writing the source code, defining requirements and specifications, drawing up diagrams, validating the software (provided that it includes feedback to improve the development and not merely testing it) or developing user manuals.

Theauthorship refers to the natural person or persons who have made an original intellectual contribution to the development of the software. The authors of a software have two main types of rights recognized by the Intellectual Property Law: moral rights and economic or exploitation rights.

• Moral rights (Art. 14 IPL): They are personal, unwaivable and inalienable. They always remain linked to the author, even if the ownership of the software belongs to the university or company.
• Economic rights (Art. Articles 95 to 104 of the IPL) These are the rights that allow the economic exploitation of the software. When a computer program is created by a worker within the framework of his work functions, the economic rights correspond to the employer, in our case the University.

Thus, theownershiprefers to who has the economic rights over the work, i.e. who can exploit it economically, license it, transfer it or enter into commercial agreements.In the case of the staff of a public university, the ownership of the economic rights does not lie with the author, but with the university.

Theauthorship refers to the natural person or persons who have made an original intellectual contribution to the development of the software. In the case of participation of external researchers (guests, collaborative projects, etc.) who have participated in the development and who belong to other entities, the exploitation rights will belong to their respective entities and therefore these will be co-owners of the software. In the case of stays of visiting professors, in some occasions, the conditions of the stay regulate the treatment to be made of the possible collaborative results.

On the other hand, the personnel in training (students, non-working scholarships) are not salaried personnel, and therefore the exploitation rights (patrimonial) of what they have developed during their scholarship, belong to them. A good practice to unify and simplify the exploitation of the software, is usually that they make a assignment of its rights (only the patrimonial ones, remember that the moral ones cannot be waived) to the entity where they have carried out their training in exchange for having the same treatment as the personnel of the same in case of benefits resulting from the exploitation of the software.

Thedevelopment environment directly conditions the business model and the license that a resulting software may have. This is because the libraries and platforms used during programming are subject to their own licenses, which must be respected in any subsequent exploitation;

• If usedproprietary environments (such as Matlab, LabView or Unity), the developments are limited to the uses allowed by the corresponding licenses, which in many cases are corporate licenses and therefore only allow academic uses, so that for commercial exploitation it may be necessary to acquire specific licenses.
• If they are incorporatedfree use libraries with copyleft licenses(e.g. GPL), derivative software must be distributed under the same license, which restricts the possibility of exploiting it as proprietary software.
• Withfree use libraries with permissive licenses (BSD, MIT, Apache 2.0), there is more freedom, since they allow to assign even a proprietary license to the result.
• When the code is developedno external dependenciesThe research team is free to choose the most appropriate license for the business model.

The analysis of the implications of the accepted licenses and their compatibility is done from i2T after registering the software but it should be taken into account what kind of licenses we accept if we are already clear about how we want to exploit the software. If you have doubts about whether a free license is copyleft or permissive, see the column “SAME LICENSE” in Choose a License.

Since the mechanisms to “protect” the intellectual property rights of software consist of means to prove authorship, the registration process is compatible with the publication of the results, contrary to what happens with inventions.

i2T informs the scientific partner of the result of the rights determination (authorship, co-ownership, implications of the licenses used in the development) and whether this analysis is compatible with the proposed exploitation model.

If the group wishes, we help to define the exploitation strategy by studying the possible business models, as well as the selection of the license that the developed software may have. All this taking into account the interests of the group and according to the analysis previously carried out.

A commercial summary is prepared for publication in Explora I+D+i.

“Explora IPR” is an application that you can find in your intranet, in the research section, and in which you can consult the dossier of the software of which you are the author, as well as those of which a member of your Research Structure is the scientific interlocutor, in case you are the Director of a Research Structure.

With “Explora IPR” you can consult, privately, the status of request/analysis/publication of the software analysis process, as well as access documents that are associated with the process. “Explora I+D+i UPV” shows only a commercial summary of the process.

It is not mandatory to register each version, but it isrecommended when changes are relevant. A new version is considered relevant when:

• Authors or their percentage of authorship changes
• Key functionalities are added.
• The design or architecture is substantially changed.
• A new technological environment or components with different licenses are used.

In these cases, it is recommended to perform aupdating the registry by means of anew communication to i2T to assess whether a new registration dossier is required.

i2T accompanies you in all the phases of the process of commercialization and licensing the company’s business model is based on the analysis of the viability of the proposed business model, the connection with companies for licensing to third parties or the creation of a spin-off.

Theincome obtained from the exploitation of the software developed at the UPV are managed in accordance with the internal intellectual and industrial property regulations and are entered in a Specific Key opened in the name of the scientific partner of the software.

It is up to this contact person or key manager to keep track of expenses and define annually theprofit sharing among the authors, according to their recognized participation in the software communication.

For these purposes, profits are considered to be the difference between the income generated and all the expenses associated with the software, both previous and foreseeable, including the cost of obtaining the result (indicated in the communication thereof), development, maintenance, promotion, etc. costs.