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Benefits to proving and depositing software IP

The Generix case is significant for the tech industry because it shows that by undertaking proactive measures to protect software, intellectual property rights were not only secured by the company, but the court was able to prove that Generix had created the software first.

The enterprise software market has seen extensive growth, particularly in the era of COVID-19 when many businesses relied on software to be able to remain business-as-usual in a virtual sense. The average number of SaaS applications used by organisations worldwide has increased from just 12 in 2016 to over 100 in 2021, and with more and more businesses relying on external vendors to provide their software and keep business operations running, software developers need to ensure that their company and software is protected to avoid potential financial and reputational consequences.

As a creation of the mind, software, and in particular source code, face many different challenges when it comes to legal proceedings and copyright. The two challenges when it comes to intellectual property rights are: 1. determining the owner of the copyright for the software and 2. proving this ownership and prior rights of the source code if challenged in court. While establishing who owns the right to the creation is automatically considered, thanks to the likes of the Berne Convention, without a way of proving the copyright itself, software developers face the risk of their source code not being fully protected.

The case of Generix

A recent case that brought these issues to light involved Generix Group, a global provider of collaborative SaaS software solutions for supply chains, and its competitor, ACSEP. The Marseille judicial court recently ruled that ACSEP had been reproducing source codes without proper authorisation, eventually costing the company £2.8m in fines. The story goes that Generix had acquired Infolog, a company that develops software for the logistics and supply chain management industry, and the support manager for Infolog Solutions left the company for ACSEP, a competitor to Generix, taking several of Generix customers with them. Generix then discovered that ACSEP had access to and had been using its source code, causing them to sue the company for infringement.

The court was able to determine the ownership rights to the software due to the fact that Generix had deposited its original source code and software IP rights through a software deposit solution provider – the Agency for the Protection of Programmes (APP). This meant that the original source code had been timestamped and its software IP had not only been determined, but also was able to be proved in court. The court ordered Infolog to end reproduction and use of the source code within the business, and all versions associated with it, and software packages using the source code were uninstalled from all the servers. The total cost in damages for Infolog extended to more than £1.7m in damages to the loss of earnings, £691k for savings made in research and development, £42k in compensation for non-pecuniary damage and £25k for unfair competition.

Why proving software IP is important

The Generix case is particularly significant for the tech industry and companies that rely on software providers because it shows that by undertaking proactive measures to protect software – i.e. Generix using a court-recognised deposit solution for source code – intellectual property rights were not only secured by the company, but the court was able to prove that Generix had created the software first.

Depositing software source code is currently not a common procedure for software developers and providers, yet if tech companies and software providers want to avoid costly court proceedings and potential damages to its reputation and valuation as a business, they must make it an essential part of their business operations.


Philippe Thomas, CEO at Vaultinum

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