by Tiberiu Protopopescu, Senior Attorney / Schoenherr

Today, most businesses and entrepreneurs are seeking new ways to improve efficiency and reduce overhead costs, especially when much of their commercial activity revolves around an online platform or website. Enter: No-Code and Low-Code platforms.

No-Code/Low-Code ("NC/LC") platforms enable users to assemble applications with pre-built components and visual tools, accelerating application building and workflow automation. Their users range from young entrepreneurs looking to cut costs, all the way to experienced developers who require a ratio of low-input/high-output deliverables for their ongoing projects.

By widening access to the world of software development – even for the less tech-savvy – these platforms enable non-programmers to create sophisticated applications using drag-and-drop interfaces and visual programming. In turn, this raises new challenges for traditional notions of software ownership and copyright protection.

Software as copyright

Software and computer programs within the EU are protected via copyright as literary works, according to art. 1 of Directive 2009/24/EC and the Berne Convention. This umbrella of protection also extends to preparatory design materials and to the expression in any form of a computer program, including source code and object code.

That said, the ideas and principles underlying the development of the computer program and its respective interface do not benefit from copyright protection.

An overly simplified version of these provisions can theoretically be boiled down as follows: whenever a person writes lines of code, they are protected as copyright, but any ideas which lead to the creation of the algorithm are free for anyone to use. The reason concepts are not protected in the same way is to prevent the creation of potential monopolies and to maintain an open market.

Additionally, for copyright protection to be granted, a level of creative input that reflects the author's free and personal choices is required, as referenced in Case C‑406/10 SAS Institute Inc. v. World Programming Ltd.

With regard to ownership, the rule of thumb is that the natural person or group of natural persons automatically enjoys the copyright protection outlined above. As an exception, copyright ownership belongs to the employer when employees develop software in the execution of their duties or under the direct instructions of the employer, unless otherwise specified by contract.

This employment-creation rule is particularly relevant for European companies deploying NC/LC platforms, as it determines whether applications built by employees with these tools belong to the employer or require separate assignment agreements.

Decoding the No-Code/Low-Code

For many businesses and developers, understanding the intellectual property framework governing NC/LC platforms is critical, given that such platforms are increasingly deployed in financial services, healthcare, tech and public administration. At the same time, they raise complex IP challenges.

NC/LC platforms aim to streamline app development by providing the user with a set of predetermined and preexisting tools or functions via a Graphical User Interface, wherein the user can drag-and-drop these components and allocate the necessary parameters, all with the goal of reducing hand-coding.

Put simply, instead of writing vast amounts of code, the user can pick and choose components much like building a castle out of toy blocks.

No coding, no copyright

While the issues may appear straightforward at first glance, a deeper legal analysis of how NC/LC platforms work with respect to copyright protection, it reveals a slight contradiction.

Since the NC/LC platforms are generally not owned by the user and all the tools are predetermined, the user can only have a finite number of combinations in which to arrange those "building blocks" towards which they can only allocate values to variables or set parameters.

This begs the question whether the initial threshold of originality is truly overcome, since on the one hand it would not reflect the user's free range of creativity (given the fixed and limited number of preexisting tools), and on the other hand mere ideas cannot be protected.

To make matters more interesting, many NC/LC platforms have provisions within their Terms and Conditions that do not allow for the transfer of potential copyright ownership to the user but only grant a right to use via licensing.

Moreover, even when the user contributes some coding, not all lines of code are treated equally, as purely functional or technical aspects are generally not considered original enough to qualify for copyright protection, as referenced in Case C-683/17 Cofemel v. G-Star.

New tech brings new questions

In today's constantly evolving world of tech, legislation sees new questions it may have not initially entailed when set out, ranging from copyright ownership of apps and using blockchain technology against counterfeiting to direct licensing agreements of data sets for training AI agents.

As it stands, NC/LC platforms provide a truly useful window into app building with ease and speed. It is up to the user to examine the potential legal implications in view of their end goal and determine the next steps.

As Web 3.0 becomes increasingly integrated into daily business, complexity rises, necessitating an in-depth analysis of potential risks.

The key is not to dismiss the available tools, but to adapt and ultimately become more efficient.