Computer programmes: copyright protection for the preparatory design material
Copyright protection for computer programmes is covered by Title 6 of Book XI of the Code of Economic Law. It is specific protection derogating from some points of the general law laid down in Title 5 of the same code. Computer programmes are equated to with literary and artistic works. The protection of computer programmes by copyright is not limited to the source code and the object code but also targets the preparatory design material. What does this mean? The creation of a computer programme requires understanding of the situation to which the programme must respond. Therefore, and in particular, there is a prior analysis and the establishment of schemes which describe the treatments to perform, the charts or organigrams commonly called flow-charts. Jurisprudence has had the opportunity to confirm the protectability of flow-charts (Brussels, 30 June 2003, A.&.M., 2004/2, p. 153-156). However, a condition is laid down by the legislation: the preparatory work for the design must be of a nature that will lead to the completion of a computer programme at a later stage. We can compare this to the preparatory work for the scenario of a film or an architect’s plans. Why extend the protection to the preparatory material? Copyright protection applies, insofar as the conditions of formatting and originality are met, as soon as the creative process is engaged, without it being necessary that the work be completed. Therefore, it would appear normal for the legislator to protect software regardless of its degree of completion or development. Finally, it seems relevant to emphasize that if the preparatory work does not permit the software to be created, the said preparatory work can nevertheless benefit from general copyright protection, provided that it is original.
