AI coding tools can now take a description of a desired product or feature and generate software to implement it. A developer can describe how an existing application behaves, test the AI-generated result and repeatedly ask the AI to modify it until the new application provides similar functionality. The result could be a competing product with a completely different codebase.

For software businesses, this raises an important question: if a competitor can reproduce the useful functionality of your product without copying your code, what intellectual property rights can you rely upon?

What is vibe coding?

Vibe coding is a term used to describe software development in which a developer tells an AI coding system what they want the software to do and allows the AI to generate much of the implementation. Instead of writing each part of the program themselves, a developer might instruct an AI system to create an image-editing application having particular tools, menus, keyboard shortcuts and file-handling capabilities. The developer can then test the result, describe any deficiencies and ask the AI to make further changes.

From an intellectual property perspective, the significant point is that this process can separate what software does from the particular code used to make it do it. Consequently a competitor may not need access your source code to reproduce many of the features that customers find valuable. The competitor may instead be able to describe those features to an AI system and ask it to produce a new implementation. That matters because copyright does not generally give the owner of software exclusive rights over all of its functionality.

Copyright protects code, but not necessarily functionality

Copyright can provide valuable protection for original software code and other original material associated with a product. However, copyright distinguishes between protected expression and the underlying ideas, principles and functionality.

Consider two situations:

1. A competitor obtains your source code and copies substantial protected parts of it into a competing product. Here, copyright is likely to be highly relevant.
2. The competitor observes what your software does and instructs an AI coding system to create software providing the same function. The AI produces different source code without access to or copying yours.

The commercial effect on your business could be similar in both cases. However the copyright position could be very different.

Vibe coding therefore makes it increasingly important for software businesses to identify what actually gives their product its commercial value and which intellectual property rights protect this. Copyright in the source code may be a diminishing part of the answer.

Patents can protect technical inventions

Patents operate differently from copyright. A patent can protect a claimed invention rather than the particular source code used to implement it. Importantly, patent infringement does not require copying and so independent development is not, by itself, a defence. This distinction can be particularly significant in the context of vibe coding.

Suppose a company develops a new technical method and obtains a valid patent covering it. A competitor cannot necessarily avoid that patent simply by asking an AI system to write new code. If the resulting software implements the invention defined by the patent claims, there may still be infringement.

Patents can therefore address a weakness inherent in relying on copyright alone: they can potentially protect an underlying technical solution even where a competitor independently creates different code implementing that solution.

Not every software development is straightforward to patent. In the UK and Europe, for example, there are restrictions on patenting computer programs “as such”, but we have experience with how to re-frame such ideas to obtain protection. 

For a technology startup, it is therefore worth asking early in the development process: have we developed a new technical solution that could be protected by a patent?

Timing matters. Patent applications generally need to be filed before relevant details of the invention – or its observable effects in the software - are publicly disclosed. Waiting until a product has become successful may therefore be too late.

Can trade secrets protect what competitors cannot see? 

There is an instinct to protect valuable technology by keeping it confidential. Trade secrets do have some attractive characteristics. They do not generally require registration or publication, and can potentially remain protected for as long as the relevant information remains secret. But secrecy has an obvious limitation: information that can readily be discovered by using a product cannot effectively be protected as a secret.

This issue becomes even more acute with vibe coding, which may simply re-discover a trade secret in the process of trying to replicate a result. Consequently it would be unwise to rely on keeping key know-how secret to protect your business.

Contracts provide another layer of protection

Software businesses can also use contracts to restrict what customers are permitted to do with their products. Licence agreements and SaaS terms may, subject to the applicable law, contain provisions dealing with reverse engineering, automated access, monitoring of software behaviour and use of the product to develop competing software. Such provisions can be useful where intellectual property law does not itself prohibit particular conduct. However, contractual protection has an important limitation: a contract generally only affects those who are bound by it.

A restriction may therefore be useful against a customer who accepts the terms and subsequently uses the software in a prohibited manner. It may be much less useful against a developer who has never accepted those terms and obtains the necessary information from publicly available sources.

Contracts should consequently be regarded as one part of a wider intellectual property strategy rather than as a replacement for intellectual property rights.

Brands and visual appearance may also be valuable

The value of a software product is not necessarily confined to its code and functionality. A product name or logo may be protected by trade marks. Original graphics and other visual material may receive copyright protection. Depending on the product and jurisdiction, aspects of a graphical user interface may also be suitable for registered design or design-patent protection.

These rights will not normally prevent a competitor from providing equivalent functionality. However they can restrict how closely a competing product can reproduce protected visual features or present itself in a way that causes confusion about its commercial origin.

For a successful software business, these elements can become valuable assets in their own right.

Software businesses need several forms of protection

Vibe coding does not make copyright unimportant. Original source code, graphics, documentation and other material can continue to receive valuable copyright protection.

What vibe coding demonstrates is the risk of assuming that copyright in source code protects the commercially important functionality of a software product.

A more complete intellectual property strategy may therefore combine:

• copyright to protect source code and other original expression;
• patents to protect eligible technical inventions;
• trade secrets to protect valuable technology that can genuinely remain confidential;
• contracts to regulate how customers and commercial partners may use the software;
• trade marks to protect product and company brands; and
• registered designs or design patents, where appropriate, to protect aspects of visual appearance.

The appropriate combination will depend on the particular software and business.

AI coding systems are reducing the amount of time and effort required to turn a description of desired functionality into working software. As that process becomes easier, ownership of copyright in one particular implementation provides less meaningful protection.

Hence for a business with valuable software, the important question is not simply “do we own the copyright in our code?” It is: “what is technically and commercially distinctive about our software, and which intellectual property rights protect those features if a competitor develops its own implementation?”

Vibe coding makes it increasingly important to answer that question early.