Table of Contents:
- What is the legal definition of a computer program?
- Does a part of a computer program constitute a computer program within the meaning of copyright law?
- The impact of recognizing a part of a computer program as a computer program eligible for protection under Article 74 of copyright law on the recognition of such right as qualified intellectual property.
What is the legal definition of a computer program?
Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, implemented by Polish copyright law, does not contain any definition of the term “computer program,” limiting itself to indicating that it also includes preparatory design material. The lack of a definition of a computer program arises from the explicit will of the EU legislator, which is dictated by rapid changes in the IT sector. Any definition of a computer program in a legal act would become outdated.
According to the European Commission, a computer program is understood as:
- An expression, in any form, in any language, in the form of any recording or code, of a set of instructions intended to enable a computer to perform a specific task or function.
- All forms of programs perceptible to humans or readable by machines, based on which a program enabling the machine to perform its function has been or could have been created.
- The expression of a set of instructions intended to enable a computer to perform a specific task or function.
A computer program also includes preparatory design material if it enables the creation of such a program, which can be understood, for example, as a structure or organizational scheme developed by a programmer that can be transcribed into source code or object code, thereby allowing the creation of a computer program.
The Polish legislator also did not decide to create a legal definition of a computer program for the same reasons as the EU legislator. The regulation applied by the Polish legislator consists in the fact that, following the directive, computer programs are subject to protection under copyright law and are protected as literary works.
From the expressed principle of protection of computer programs “as literary works” in art. 74 para. 1 of the Copyright Act, it follows that the same conditions of protectability apply to programs as in relation to other categories of works. Therefore, in relation to programs, the same criteria of protectability apply as in relation to other categories of works, and protection applies to authors regardless of the fulfillment of any formalities.
Does a part of a computer program constitute a computer program within the meaning of copyright law?
A part of a program, using the definition indicated by Advocate General Yves Bot in the aforementioned opinion of 14 October 2010, “a set of instructions intended to enable a computer to perform a specific task or function” (a part of a program/subroutine constitutes only a quantitatively smaller set of instructions), and only if the conditions specified in art. 1 para. 1 of the Copyright and Related Rights Act are met, i.e., it is a manifestation of creative activity with an individual character, it constitutes a computer program subject to protection under art. 74 para. 1 of the Copyright and Related Rights Act.
Thus, even if a program created and ultimately used by the user constitutes a set of several parts of this program (created for this purpose), then each part separately (an appropriate fragment of the program code), constituting its own subroutine, provided that it is a manifestation of creative activity with an individual character, constitutes a computer program subject to protection under art. 74 of the Copyright and Related Rights Act.
The recognition of a part of a computer program as a computer program subject to protection under art. 74 of the Copyright and Related Rights Act has a significant impact on the recognition of such right as qualified intellectual property under art. 30ca para. 2 point 8 of the Corporate Income Tax Act.
If such a part of the program created by a specific programmer constitutes a specific subroutine, then provided it is a manifestation of creative activity with an individual character, it constitutes a computer program subject to protection under art. 74 of the Copyright and Related Rights Act, and thus the copyright to such a program constitutes qualified intellectual property under art. 30ca para. 2 point 8 of the Corporate Income Tax Act.
The above conclusions were reached first by the Provincial Administrative Court in Warsaw in its judgment of 22 February 2022, ref. no. III SA/Wa 1787/21, and then by the Supreme Administrative Court in its judgment of 7 December 2023, ref. no. II FSK 812/22, which was crucial for the possibility of recognizing a part of a computer program as qualified intellectual property, and thus the possibility of taxing income obtained from IP BOX rights by a taxpayer who, inter alia, submitted an application for an individual interpretation of tax law provisions in this respect.