Intellectual property is a regulatory discipline that governs and protects copyright, safeguarding all human expression resulting from ingenuity and talent, which includes the creations of the human intellect regardless of their purpose. Thus, Article 6, paragraph 2 of Law 23 of 1982 establishes that only the literary form is protected, such as ideas explained, illustrated, or incorporated into literary, scientific, and artistic works.
In this sense, in the case of applications, they are composed of a set of instructions using words, codes, plans, or in any other form that, when incorporated into a computer or electronic device, execute a specific task or obtain a specific result. Therefore, what is protected in the case of the application is the software code, not the function.
Thus, software is protected by Colombian legislation through Andean Decision 351 of 1993, enshrined in Articles 23 to 28, which establishes that software is protected by copyright, and not by industrial property, granting software creators the presumption of authorship, and the moral and economic rights recognized internationally and nationally.
Decision 351 of 1993 regulates the works or creations protected by copyright, and in its Articles 9 and 10, it indicates that the author obtains the right over that creation without the need to register, this is a legal presumption since it admits proof to the contrary, and establishes that the author is considered to be the person identified by their name, pseudonym, etc. And in Law 23 of 1982, exclusive and economic rights are also granted to the creators of a work, such as the moral rights enshrined in Article 30 and the economic rights found in Articles 12 to 29, establishing that moral rights have no determined duration in time, are never lost, nor prescribe, but economic rights have a time limit which lasts for the entire life of the author, and 80 years after the death of the creator; upon completion of this term, these creations pass into the public domain.
According to the foregoing, registration is very important because it grants the rights holder the possibility to exercise actions in case of infringement by third parties on their creation. Thus, it is recommended that the creator of software – for legal certainty – register with the National Copyright Directorate (DNDA), as it has evidentiary purposes in case any conflict or copyright infringement arises[1].
Thus, the registration of software must be carried out before the National Copyright Directorate, regulated by Law 23 of 1982 and Decree 1360 of 1986, through which it is established that software is a literary work, composed of instructions using words, codes, plans, or in any other form that, when incorporated into a computer, execute a task, which can be registered by its creator at any time they wish.
According to the above, the software registration application must contain identification of the person processing the application, whether acting in their own name or on behalf of another, etc., also must identify the author or authors, individualize the application, with name, year of creation, description of functions, its characteristics, country of origin, etc. And must declare the type of work, whether original or derivative, also declaring what work it is, according to the classes that appear in Article 8 of Law 23 of 1982.
Another aspect to consider in the development of the application is the importance of the trademark, which can be registered. There are several types of trademarks, and if you wish that no one else uses it, you must register the trademark with the Superintendence of Industry and Commerce. The above influences, given that if the application becomes recognized, the created trademark obtains considerable economic value, according to its popularity and recognition in the market.
In this order of ideas, software is determined by Colombian legislation as a literary or artistic work, which must be registered with the Registration Office of the National Copyright Directorate, by the natural person. Additionally, in the case that the software is developed for an application, it is important to consider the relevance of creating a trademark, a creation that does not grant ownership presumptively, so it must be registered with the Superintendence of Industry and Commerce, since it becomes an economic asset for the benefit of its owner.