IT regulation
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Software licenses and other IP licenses are subject to general Danish contract law. Software itself is protected by the regulation on intellectual property rights. Thus, the intellectual property rights to software are protected by the Danish Copyright Act (in Danish “Ophavsretsloven”). Under Danish law, software in itself is not patentable (a process, as part of the software may be), but it is possible to take out a patent on an invention, where software constitutes part of the invention, provided that the software is not the main part of the invention. Databases are protected by the Danish copyright act, but the special rules regarding software do not apply to databases. A distinction is made between the transfer of a license - i.e. a limited right to use the particular programme where the licensee only receives limited rights and the software may only be used in accordance with the license terms supplemented by the Danish Copyright Act - and the transfer of the copyright to the software itself.
To what Extent does the Freedom of Contract apply in Relation to IP Contracts?
In accordance with the general principle of freedom of contract, there are no formal or special requirements to software licenses, and the license agreements may generally be negotiated freely between the parties (as with any other given contract). Under the Danish Copyright Act, copyrights to software may be transferred in whole or in part, which is not the case in some other European jurisdictions.
Does Danish Law allow for Reverse Engineering?
Under the Danish Copyright Act, a licensee is granted a limited right of reverse engineering, allowing the licensee to create interoperability between the licensed software and the licensee’s existing software and IT system. This provision is mandatory, and accordingly, license agreements which specifically prohibit reverse engineering may be set aside by a Danish court. Generally, license agreements contain provisions limiting the right to reverse engineering as to only allow such reverse engineering as required by mandatory legislative provisions.
Does Danish Law allow for Reverse Analysis?
Pursuant to the Danish Copyright Act, a person who is entitled to use a program is granted a right to reverse analysis, allowing the person to observe, study, and test the software in order to determine the ideas and principles which underlie any element of the program.
What should you be aware of when considering outsourcing?
Many issues will have to be considered in relation to outsourcing. Among other things, it is important to obtain written permission from all relevant rights holders - i.e. licensors – and that the licensees considering outsourcing ensure that their license agreements with suppliers explicitly allow outsourcing.
Businesses within the financial sector are subject to special regulation influencing the terms and conditions for outsourcing.
The above does not constitute legal counseling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above.