By Victor Lima and Yuri Poyares
The digital economy has consolidated software as one of the main strategic assets of companies, regardless of the sector. Computer programs play a central role in process automation, data analysis, operational management, and the creation of innovative products and services. In this scenario, the legal protection of software is increasingly relevant, both to ensure the integrity of technological investment and to prevent litigation related to authorship, misuse, and unfair competition.
In Brazil, the legal regime applicable to software is defined by Law No. 9,609/1998 (Software Law), complemented by copyright regulations (Law No. 9,610/1998) and, in some cases, by the Industrial Property Law (Law No. 9,279/1996). Although the system is consolidated, practical doubts persist regarding the best protection strategies, the scope of registration with the INPI (National Institute of Industrial Property), and the intersection of software with other mechanisms for protecting intellectual property.
1. Legal nature of software and its legal protection
According to Article 2 of Law No. 9.609/98, the intellectual property protection regime for software is the same as that conferred on literary works by copyright and related rights legislation. Copyright protection extends to computer programs regardless of registration and arises automatically upon their creation, as per Article 2, § 3, of the aforementioned law.
Although protection is automatic, registering software with the INPI (Brazilian National Institute of Industrial Property) has great practical relevance. It is a declaratory act, but it constitutes the safest way to prove authorship, creation date, and technical content—fundamental elements in legal disputes and commercial negotiations.
The deposit is made by submitting a hash summary of portions of the source code and other data considered relevant for identifying the program. In a legal dispute, this information...
Encrypted digital evidence becomes highly relevant because it allows the judiciary to verify the authorship of a software program.
Software registration is characterized by its procedural simplicity and confidentiality, since portions of the source code are not disclosed to the public at the time of filing. To apply for protection, only basic information about the applicant, the author, and the program itself is required, which directly translates into the speed of the procedure.
2. Updating and maintaining records
Although registration is not mandatory, periodic updates are a widely recommended best practice. Whenever there are substantial changes to the source code, architectural adjustments, or the release of new features, it is advisable to make a new deposit, referencing the registration of the previous version.
3. Other forms of protection applicable to software
Software is the product of work by professionals from different technical backgrounds. This interdisciplinarity in its development gives the program a complex nature. Therefore, although software is protected by copyright law, various aspects of this creation can be protected by other intellectual property assets, allowing for more appropriate commercial exploitation by the program's owner.
Depending on the nature of the innovation, the following tools can be used:
a) Patents (Law 9.279/96)
Brazilian law does not allow the patenting of computer programs themselves, but it does allow the patentability of technical solutions implemented on a computer, provided that the requirements of novelty, inventive step, and industrial application are met. In this regard, to avoid misjudgments, it should be kept in mind that the developed solution must... (i) solve a technical problem and (ii) to achieve a technical effect that would qualify it for patenting.
b) Industrial Design
Applicable to ornamental elements (such as graphical interfaces) when their visual form is novel, original, and can be mass-produced in a uniform manner. Although there are still discussions about the scope of this protection in the context of software, its use has expanded to preserve the visual identity of applications and systems.
c) Integrated Circuit Topography
Focused on hardware innovations, in accordance with Law No. 11.484/2007. In projects involving embedded systems, a combined evaluation of software and circuit architecture may be necessary.
d) Trademarks (Law 9.279/96)
The commercial identification of the software, its name, logo, and visual identity, can and should be protected through trademark registration. Article 129 of the Brazilian Industrial Property Law (LPI) guarantees the holder the exclusive right to use the distinctive sign throughout the national territory.
4. Contracts: the other half of the protection
In the corporate environment, a large part of the litigation involving software stems not only from the absence of registration, but also from insufficient contractual provisions. Licensing agreements, assignment of rights, custom development, and technology partnerships must clearly define: (i) Code ownership; (ii) usage limits; (iii) possibility of customization; (iv) confidentiality clauses; (v) Penalties for violation; (vi) Ownership of future versions.
5. Final considerations
The legal protection of software requires an integrated approach: registration, contracts, compliance, and IP strategy must work together. The economic value of software is too high to rely solely on automatic legal protection.
Companies that structure good protection practices, including updating registrations with the INPI (Brazilian National Institute of Industrial Property), assessing patentability when applicable, and implementing clear development and licensing policies, reduce the risk of litigation, strengthen their commercial positioning, and increase the legal security of their technological assets.
Therefore, it is essential to have professionals specializing in Intellectual Property to ensure the best use of your technologies.
Victor Lima – Lawyer and partner at Murta Goyanes Advogados. Leader of the Intellectual Property Committee of ABES. Master's degree in Intellectual Property.
*Yuri Poyares – Master's degree in Intellectual Property, and partner at Murta Goyanes Advogados.
Notice: The opinion expressed in this article is the responsibility of its authors and not of ABES – Brazilian Association of Software Companies
