Articles dealing with legal issues related to computer programs are frequently accompanied by questions regarding access to source codes by the “acquirer” of software. The matter in question then also plays an important role in practice, both in the economic relationship of the development company to its clients and at the moment of termination of longer-term cooperation in providing custom-made software.

It must be mentioned in advance that the right to access to the source code of a computer program in this article is understood as relative (i.e. as a potential entitlement of a person who pays the price for software, or as an entitlement of a person who acquires software free of charge) and not in the sense of an obligation to publish the source code of a computer program to an indefinite circle of persons, as this requirement is contained in certain free software and Open Source licence conditions.

No difficulties arise from a legal perspective if the issue of delivery or non-delivery of source code is expressly regulated in the contract between the parties concerned, or in the contractual conditions. Whether it concerns a licence agreement, a contract for work or, for example, one of the employment law contracts, this matter is fully at the disposal of the contracting parties. Matters regarding access to source codes of a computer program are, for example, relatively clearly addressed by certain free software and Open Source licence conditions, where this issue is practically a conceptual feature. Express regulation in the contract can thus in any case be recommended as prevention against potential future disputes between the contracting parties.

If the issue of delivery of the source code of a computer program is not expressly regulated by the parties in the contract, this is a more complex situation and in determining the rights and obligations of the parties to the contract in relation to the source code, it is necessary to proceed from the provisions of the legal order and from the purpose of the contract itself. In this connection, it must be mentioned that no legal regulation (including the Copyright Act) expressly regulates the mentioned issue in any way. Furthermore, it is appropriate to state that at this time we are not aware of any court decision by Czech courts regarding this issue.

In determining the rights and obligations of the contracting parties regarding source code, it is necessary to take into account in particular the legal relationship to the computer program in question, i.e. whether, for example, the client is the exerciser of property rights to the computer program or whether it concerns an acquirer of the computer program on the basis of a licence agreement (user). We dealt with the question of when a client under a contract for work is the exerciser of property rights to a computer program and when not in this article.

In ordinary practice, from a quantitative perspective, the provision of software to end users on the basis of a licence agreement naturally predominates. This concerns mass distribution of boxed software, making a computer program accessible on the internet, etc. In this case, the provider grants the end user authorisation to exercise the right to use the computer program (licence), in the scope and by the methods established in the licence agreement (licence conditions). The acquirer in this case acquires only those authorisations which are directly stated in the contract or which are necessary to achieve the purpose of the contract. If the computer program is provided to him only in the form of an executable file, the acquirer does not have the right to demand from the provider access to the source code (which also corresponds to current ordinary practice in the area of “proprietary” software). As already stated above, this naturally applies only on the condition that the licence agreement itself does not expressly provide otherwise (as is the case with free software and Open Source software).

In this connection, it is also appropriate to mention that the fact that the acquirer is not in this case entitled to demand access to the source code has no effect on his statutory rights as a user of the computer program within the meaning of Section 66 of the Copyright Act (if it is possible to realise them in practice). Even in this case, therefore, it applies, for example, that “the authorised user of a copy of a computer program does not infringe copyright if he or a person authorised by him studies or tests the functioning of the computer program for the purpose of determining the ideas and principles on which any element of the computer program is based, if he does so when loading, storing the computer program in the memory of a computer or when displaying, running or transmitting it…”

In the case of larger contracts, where the licence agreement is the result of individual negotiation between the software manufacturer and the acquirer, it is possible that the licence agreement authorises the acquirer to modify or translate the provided computer program (Section 51 of the Copyright Act), either independently or with the assistance of other persons. If in such a case the licence agreement exceptionally does not expressly mention access to the source code of the computer program, we are of the view that such access to the source code for the acquirer is a prerequisite for the realisation of his rights and the fulfilment of the purpose of the contract, and the provider is therefore obliged to provide him with the source code.

An entirely different case from the licence relationship is the situation where the exerciser of property rights to the computer program is the client on the basis of a contract for work (or the employer from an employment law relationship). Important in relation to our case is particularly the scope of rights of the exerciser of property rights to the computer program. These rights are mentioned, for example, in the provision of Section 58(4) of the Copyright Act – “If the employer exercises property rights to an employee’s work (note: in our case a computer program), it is deemed that the author has consented to publication, modifications, adaptations including translation, combination with another work, inclusion in a collective work, as well as to making the employee’s work available to the public under his name, unless agreed otherwise.” And also in Section 58(5) of the Copyright Act “Unless agreed otherwise, it is deemed that the author has granted the employer consent to complete his unfinished employee’s work in the event that, despite a request for subsequent performance, he is in delay with creating the employee’s work, or if his obligation to complete such work ceases due to death or impossibility of performance.” The above-mentioned provisions of the Copyright Act also apply to the client under a contract for work in the event that he is the exerciser of property rights to software within the meaning of Section 58(7) of the Copyright Act (provided that it is not expressly agreed otherwise).

The exercise of property rights therefore presupposes the possibility of relatively extensive disposition of the software, and in order for the exerciser of property rights to be able to properly assert these rights, it is logically essential that he has access to the source code of the computer program. From the above-mentioned authorisations of the exerciser of property rights to the computer program (including carrying out modifications to it), it can therefore be concluded that the exerciser of property rights is entitled to request from the author (or from the assignee of the exercise of property copyright) access to the source code for the realisation of these rights.

From the above-mentioned (substantive) legal situation, it is naturally necessary to distinguish the factual state, where, for example, the contractor refuses to provide the client with access to the source code, even though the client is the exerciser of property rights to the software. In this connection, the ratio between the speed of development in the field of software and the responsiveness of the Czech judicial system is logically also important. However, the question of potential lengthy enforcement of the entitled person’s claims does not change the potential possibility of claiming, in addition to access to the source code itself, also compensation for damage arising as a result of breach of legal obligation. For these reasons too, therefore, it is appropriate to design the contractual relationship always in such a way as to prevent potential disputes to the maximum extent.

This text was translated from Czech to English using an AI translator.