Escrowing source code at the Agency for Programme Protection (APP)
Escrow of the source code at the Agency for Programme Protection (APP)
The deposit of the source code at the Agency for Programme Protection (APP) is often misunderstood by IT developers.
This deposit has two objectives: to create a proof of the date of creation of the source code, and to reassure the co-contractors by allowing conditional access to it. It does not allow you to create an intellectual property title on the source code or any other registered element.
It is possible to file software source codes, databases, websites or any other computer document.
Copyright, unlike industrial property rights such as trademarks or patents, does not arise from the fact of registration but from its existence.
If a work meets copyright criteria (especially originality), it is automatically protected.
In addition to the question of originality, the major problem in copyright matters is that of the date of creation and the identity of the author.
Submission to the APP makes it possible to have a certain date of the existence of the work, and therefore to potentially have an earlier date in relation to third parties. It also makes it possible to detail the content of the work on the date of deposit, which will make it possible to provide evidence in case of counterfeiting.
Moreover, this deposit allows the applicant to have a presumption of authorship of the work. If this deposit is fraudulent, it will of course be possible to break the presumption, for any third party with useful evidence.
The repository should be renewed for each major update of the source code, especially if it integrates essential software functions. This successive deposit also makes it possible to trace the evolution of the code.
Prior to the conclusion of an IT contract (in particular in terms of a license or SaaS contract), the IT service provider is frequently asked whether it has deposited the source code, and whether it is possible to obtain access to it under certain conditions.
In fact, customers want to guarantee themselves against the possibility of losing access to their software or its maintenance, if the service provider does not continue its activity. This question is recurrent when the service provider is a small company or a start-up.
Access may take two shapes :
The access clause is a simple clause that provides that under certain conditions, the customer will be able to access the source code: these conditions are often judicial liquidation or the cessation of activity. It will then be necessary to inform the APP when access to the source code is given to a contractual partner.
The Escrow Agreement is signed between the provider, the customer and the APP. It provides for a frequency of filing, in particular in the event of updates, the user's rights to the source code (commercial use or internal use, maintenance internally or by a third party, additional developments, modification of the source code, etc.), as well as the precise methods of accessing the source code (according to the APP procedure). Access may also be restricted to specific conditions.
The APP provides an Escrow Agreement template that must be met in order to benefit from this regime. It will be easier for the customer to access the code via this mechanism in case of difficulty.
The use of these tools will reassure customers about the sustainability of the software and will favor the software developer.
Before submitting a source code to the APP, it will be necessary to join and renew the membership every year. Annual membership fee is, for 2017, 204 euros including tax per year (to which 60 euros should be added for the first year) for a natural person and 560 euros for a legal person.
Each deposit is then invoiced 228 euros including VAT.
Specific costs may also be added in the event of an access clause or the conclusion of an escalation contract.
The cost of an APP deposit can be significant for a small business, but it makes it possible to secure their creations.
If filing with the APP is too expensive or complex, it is always possible to create further proofs of the creation date :
These solutions are less complete than the APP, but still allow for a certain date of creation and a beginning of serious proof as to the authorship of the work.
Whatever the solution chosen, it is useful to carry out these steps and to protect any creation before the existence of disputes.
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