Protection of computer programs in El Salvador

Sonia Fuentes,  May 14, 2024

Arias Law - In this digital era, where computer programs are key to the development of most sectors of the economy, it is essential to know how computer programs, software and mobile applications are protected by Salvadoran law.

We will start this study with the following question: What is a computer program?

In the national legislation of El Salvador computer programs are defined in Chapter II Article 32 of the Intellectual Property Law as follows:
"Computer program, either source program or object program, is the literary work constituted by a set of instructions expressed by means of words, codes, plans or in any other form that, when incorporated in an automated reading device, is capable of making a computer, that is, an electronic or similar device capable of elaborating information, execute a certain task or obtain a certain result."

Article 13 of the same law establishes that all literary and artistic works, such as books, pamphlets and writings of any nature and length, including computer programs, are considered protected works.

It is understood from the norm that computer programs, software or mobile applications are considered literary works and as such are protected under the protection of the Copyright in El Salvador.

Copyright protection derives both from national legislation and international treaties, to which El Salvador is a party.

On the one hand, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) establishes in its Article 10 numeral 1: "Computer programs and data compilations. Computer programs, whether source programs or object programs, shall be protected as literary works under the Berne Convention (1971).

On the other hand, El Salvador is a party to the Berne Convention for the Protection of Literary and Artistic Works, where it is established that the right of the creations of the human intellect that are considered protected by copyright, is born from the moment they are created and in its Article 5 numeral 2 establishes "Rights guaranteed: 2) "The enjoyment and exercise of these rights shall not be subordinated to any formality and both are independent of the existence of protection in the country of origin of the work", said article contemplates the principle of automatic protection, that is to say that computer programs being under the protection of copyright, from the moment the computer program is finalized it is protected, without the need to make a deposit or registration.

Therefore, computer programs, software, or mobile applications in El Salvador are protected without the need to make a deposit before the competent authority, which in our case is the Registry of Intellectual Property of the National Registration Center.

However, although it is true that it is not mandatory to make the deposit of the computer program to be protected, it is recommended to make such deposit, since the certificate of deposit of the work issued by the Registry of Intellectual Property serves as a suitable means to demonstrate in cases of conflicts before a judicial authority, the existence and ownership of that right, it is a support that the author has. It is worth mentioning that the copyright in computer programs protects the source code, object code, technical documentation and user’s manuals or user’s guides, i.e. it is the essence of the computer program, software and mobile applications that is protected by copyright.

Computer programs, being protected by copyright, must meet certain requirements to be considered eligible for protection:

• It must be susceptible to be disclosed, that is to say that it can be read in its own programming language;
• It must be original. The main condition that must be met is that the computer program must be capable of being distinguishable from other computer programs, software or mobile applications, in its source code, or in its object code, or in its user manuals. Originality in copyright is the way in which the idea is developed, since the ideas themselves are not protected by copyright, copyright protects the specific expression of that idea;
• It must be able to be reproduced, it must be able to be fixed in a support and the author must be able to generate copies of it.
• It is very important to understand who is recognized as the author of a computer program. In this sense, the author of a computer program is any person who has participated in its creation, development or programming. It is presumed that it is the person who appears as such in the program, unless there is evidence to the contrary.

Computer programs, being subject to the protection granted by copyright, comprise moral rights and economic rights.

Moral rights: they protect the author’s personality in relation to his work and require that his paternity be taken care of, that he be mentioned and respected as the creator. They are perpetual, inalienable, unseizable, non-transferable and unwaivable.

Economic rights: these refer to the rights of economic exploitation of the author’s works and creations. Among these rights are the right to reproduce the work, the right to distribute the work, the right to exploit the work, either for a fee or free of charge.

Last but not least, we will know the term of protection of the copyright on a computer program in El Salvador. The Intellectual Property Law establishes a term of protection of 70 years from the day of the author’s death. The ownership of these rights may be legitimately exercised by the successors after the death of the author. In the case of works created by more than one author, the end of the term of copyright protection is calculated from the death of the last living co-author. The term of protection for anonymous works or works signed under a pseudonym is calculated from January 1 of the year following the year of first disclosure. However, if the true identity of the author is known despite the pseudonym, the copyright protection has the same duration as for other known authors (until at least 50 years after their death and in the case of El Salvador 70 years). When the author of a work is a company or an institution and not an individual, i.e. not based on the life of the author, the period of copyright protection will be calculated from January 1 of the year following the year of the first authorized disclosure.

In summary, although it is true that the essence of computer programs, software and mobile applications in El Salvador are protected through copyright, this does not exclude the possibility of protecting them through other categories of intellectual property, such as trademarks, industrial designs, and even patents of invention, as long as the requirements of patentability are met, that is: that it is new, has an inventive level and is susceptible of industrial application.

Author:

Sonia Fuentes - Associate, El Salvador

AriasLaw.com