Open Source Software

Copyright and patents are two different methods of protecting software, each focusing on different aspects of intellectual property rights.

Copyright In Switzerland, external page copyright law protect works that are literary and artistic intellectual creations with individual character, irrespective of their value or purpose. This includes, for example, literary and musical works, paintings, sculptures, films, operas, ballets and pantomimes works.

Computer programs (software) are explicitly considered works under copyright law. However, copyright does not protect the underlying ideas, algorithms, or functionality of the software—only the specific way these elements are expressed in code. 

A work is protected by copyright law as soon as it is created. In case of software, this means that as soon as the software code is written, it is copyrighted (as long as the other copyrightability requirements are fulfilled). 

For detailed information of the copyright law and ownership of software at ETH, please refer to Software and Copyright.

Patents, on the other hand, protect the underlying inventions that make the software function as a technical solution to a practical problem. A computer-implemented patent can protect new and inventive algorithms, methods, or technical solutions implemented by the software. With a patent, the inventor can prevent others from using, selling, or making the patented invention without permission.

If you are interested in applying for a patent for your invention implemented as a software, please proceed to Patenting Software.

The author of a software is the person who has materially written the program code, meaning the developer(s) or coders are considered the authors of the software. If a professor hosts an OSS project but does not directly contribute to the coding (by either writing software code or being substantially involved in code development), he or she is not considered an author under Swiss copyright law.

Under Swiss law, copyright authors have moral rights, in particular attribution rights. This means that the author has the right to be acknolwedged as the creator of software.  

Importantly, if the software was created as part of an employee’s official duties at ETH Zurich, ETH Zurich holds the exclusive rights of use and exploitation of the software (Federal Act on the Federal Institutes of Technology, external page Article 36, para. 2). This means that ETH Zurich can exclusively determine who and under what conditions can access, use, distribute, and redistribute (including license and sueblicense) the software. In this sense, ETH Zurich can be regarded as the "owner" of the software.

• If you wish to license your code as proprietary software to a third party, it must be submitted to ETH transfer for review. ETH transfer will then draft a license agreement for the software, which must be approved and signed by the ETH Vice President for Knowledge Transfer and Corporate Relations, as well as the responsible professor. A detailed guidance can be found at licensing software.
• If you wish to release your code under an open-source license, the decision must be approved by the responsible Research Group Leader (normally the professor in charge of the funding for this work), even if he or she is not an author of the code. This reflects the planned revision of the ETH Zurich Exploitation Guideline, while the old Exploitatoin Guideline (RSETHZ 440.4), currently still in force, requires that the decision of OSS release must always be approved by all authors.

As the OSS ecosystem operates with dynamics and mindset that differ significantly from conventional proprietary software, it is important to be fully informed about the legal, commercial, and reputational risks associated with OSS release and license management. OSS authors at ETH Zurich are strongly encouraged to visit our website, particularly the "OSS Release Checklist".