The day-to-day operation of an online shop is, of course, closely connected with the use of computer programs. Practice in this area is quite diverse and depends on the decision and position of each trader as to whether the development of computer programs necessary for their operation is secured individually or whether existing more or less standardised software solutions of third parties are used. Cases where a combination of both these variants is used are also frequent.

A number of legal issues are associated with the development and use of computer programs, and the urgent need to resolve them appears in most cases only when a dispute arises. On the internet, a number of not entirely accurate pieces of information relating to the legal issues of computer programs can be found, which is also caused by the fact that many of these pieces of information originate in Anglo-American legal culture, which, however, differs significantly from continental legal culture (to which Czech law also belongs). For these reasons too, we considered it beneficial to devote the February circular to some basic questions connected with this area.

In the case where a trader secures software development through their own employees, the situation is usually not legally problematic. If a computer program is created on the basis of an employment relationship (thus including agreements performed outside an employment relationship), the employer becomes the person exercising the economic copyright, directly on the basis of law. Specifically, on the basis of the provision of Section 58(1) of the Copyright Act (Act No. 121/2000 Coll., as amended), which provides that “unless otherwise agreed, the employer shall exercise in its own name and on its own account the author’s economic rights to the work which the author has created in fulfilment of their obligations arising from the employment or service relationship to the employer… (employee work).” The exercise of economic copyright can be considered, for simplification, as a certain analogue of ownership in the case of a tangible thing. As stated above, the legal position of such a trader is usually not problematic (provided that unsuitable contractual documentation is not used for the regulation of the contractual relationship with the employee) and the trader should also have access to the source code of the computer programs being created secured.

In a practically identical legal situation is also the trader who secures software development to order through external contractors – natural persons. They also become the person exercising the economic copyright directly on the basis of law (provided that they do not conclude a different agreement with the author – programmer), specifically on the basis of the provision of Section 58(7) of the Copyright Act: “Computer programs and databases, … shall be considered employee works even when they have been created by the author to order; the customer shall in such case be considered the employer.” In this connection, however, it must be pointed out that although computer programs are protected by copyright in the same way as copyright works, they have, in this respect, a different legal regime than, for example, graphics or photographs have. Within the contractual arrangements with the contractor – a natural person, however, it is certainly advisable to expressly address the question of access to the source code of the programs being created.

Cases where the development of a computer program is secured externally by a legal person (e.g. a limited liability company or a joint-stock company) require increased attention on the part of the customer. It is equally advisable from a legal point of view to pay increased attention to those situations where an already existing software solution of a third party is to be used. However, we shall deal with these two cases in more detail only in one of the future legal circulars.

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