Source code escrow: why and how to deposit with the APP
Proof of creation date, escrow, access clause: depositing source code with the APP to protect your software and reassure clients.
The deposit of source code with the Agence pour la Protection des Programmes (APP) is often misunderstood by software developers. The deposit serves two purposes: establishing proof of the creation date of the source code, and reassuring contracting parties by allowing conditional access. It does not create an intellectual property title over the source code.
Copyright, unlike industrial property rights (trademarks, patents), arises from the existence of the work, not from its registration. If a work meets the requirements for copyright protection (in particular, originality), it is automatically protected.
A deposit with the APP provides a certain date of the work’s existence, a date of priority enforceable against third parties, and a presumption of authorship. The deposit should be renewed with each major update of the source code. For broader IP protection, see the article on intellectual property in SaaS.
Clients often seek protection against the risk of losing access to the software if the provider ceases activity. Access to the source code can take two forms: an access clause in the contract (providing conditional access, typically in the event of insolvency or cessation of business), or a full escrow agreement signed between the provider, the client and the APP (specifying deposit frequency, user rights, and access procedures). For the provisions to include in your contracts, see the article on essential clauses in a software development contract.
If depositing with the APP is too costly, other solutions can establish proof of creation date: sending a registered letter to yourself containing the software on digital media, depositing with a third-party escrow agent (such as a notary), or using an electronic Soleau envelope. These solutions are less comprehensive but still provide a certain date. For an overview, see the intellectual property services page.
Source code escrow is a worthwhile investment to secure your creations and reassure your clients. Whatever solution you choose, protect your developments before disputes arise. If you need to structure the protection of your software, book a call.
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