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This article is written by Vasundhara Thakur graduated from IME Law College. This article emphasises the legal aspect of software protection under Copyright and Patent laws, comparative overview, analysis and conclusion thereof. 

Introduction

Softwares are programmes that direct the computers perform the task assigned to the computer. It comprises data, programmes, a procedure that helps in the smooth functioning of a computer system. Here the question arises as to why software needs legal protection? Well, the software is a set of rules that commands the computer what to do and how to do a particular task. The software is developed by using different codes which require human intellect, time, labour and special skill sets in the form of the invention and original work, although intangible in nature, however, valuable for the developer and the end-user which comes under the ambit of Intellectual Property laws such as copyright and patents. In this era of digitalisation where people are dependent on technology and various software, it is pertinent to protect the software from infringers with proper legal remedies. The software can be protected under both copyright and patent. 

Software copyright protection

Copyright provides to its owners or creators the exclusive right to exploit their work for and to make copies of such creative works while sharing their creativity or creative work with the world. Certain rights of the original creators of the computer programme are protected under Section 14(b) of the Copyright Act, 1957 (hereinafter, referred to as the Act). 

Copyright in software comes under the definition of literary work as specified under Section 2(o) of the Indian Copyright Law. The literary work is the product of the labour, skill and capital expended by the author on their work and is protected under Section 2(ffc) of the Act. Computer software includes many items like the programmed manuals and papers, punch cards and magnetic tapes or discs required for the operation of computers. Program manuals, paper and computer printouts may be considered literary work. However, the concept or idea of algorithms used in computer programming is not capable of copyright protection. Punch cards that contain information in a particular notation, programmes devised for the working of computers, magnetic tapes and discs, including floppy discs which contain information recorded through electronic impulses may be considered as databases and accordingly comes under the definition of literary work. 

Certain acts constitute copyright infringement of computer programmes as mentioned under Section 51. It is pertinent to note here that when a computer programme is sold i.e. the transfer of program copy is transferred then a purchaser of the said programme can use it to make copies of the work specified, but not for any commercial gain by replicating the software for commercial gains. These exceptions are specified under Section 52 as certain acts which will not be called an infringement of computer programmes. However, in the case of a licencing agreement, a licensee can use the software and/or possess rights over the computer programme/ software as specified and agreed upon in the Licensed Agreement. 

In Copyright law, a licence is permission to do an act and contravention of such act would be unlawful. In the context of Software Licencing, the owner or author retains substantial rights and control over their software. The license provides for the way to use the programme, the copies to be made, distribution of the software or any other terms specified by the Licensor. For example, when a person purchases Microsoft word which comes with a protected key (a series of words and numbers), it does not give that person the ownership of the software, instead, it gives the ability to use the software for a specified time period and the specific purpose.

As we know copyright on work comes into force from the time a copyrightable work is developed or produced. However, for better protection on computer programmes the Copyright Rules, 2013 under Rule 70(5) requires a person to file an application along with the source code and the object code. Also, three complete copies of the works, including the published and unpublished work. 

Software patent protection

A patent is an exclusive right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. It consists of an exclusive right to manufacture the new article or manufacture an existing article according to the invented process for a limited time, after the expiry of the duration of the patent, anyone can make use of the invention. In India, the term of a patent is 20 years from the date of filing of an application which is subject to renewal.

Generally, an invention is considered as patentable if it satisfies the conditions mentioned under Section 2(1)(ac) (industrial application), Section 2(1)(j) (invention) and Section 2(1)(ja) (inventive step) of the Patents Act, 1970

As per the Indian Patent Law, the software is not patentable per se as specified under Section 3k of the Patents Act, 1970. In India, the software is not directly protected under the Patents Act, however, it could be patented if it is attached to novel hardware and must be an invention that is unique and capable of industrial use. Also, in India software is considered as a process that is executed when a computer functions a programme and not merely an algorithm. 

Similar to copyright, patent laws also allow the patent owner to give license or assign their patented work to any individual or third party giving them certain rights over patented work. Such license is to be granted by a written agreement wherein all the terms and conditions are precisely mentioned.

Why is software patent or copyright important

Software protection, with regards to computer programming, is mandatory as it prevents the piracy of a software programme, also the source codes and any other portion of the software which is regarded as “literal infringements of copyright”. However, the protection under copyright laws is limited as copyright protects the execution of ideas and not the idea itself. 

Whereas, software patents provide a broader ambit of protection as it protects the creation of inventive concepts behind the work. Therefore, a patent is a better way of protecting an original computer programme, although it is a bit difficult to obtain patents on software especially in India. But with new guidelines and precedents set by the European and the UK Patent offices, the process has become more achievable when it comes to patenting software. The major criteria to grant patents are novelty, inventiveness (non-obvious) and must be industrially applicable. 

Copyright versus patent – overview

Both copyright law and patent law provide different kinds of protection to the software. Where copyright provides limited protection, patent laws provide broader protection to the software. Here are some differences to identify such protections under both the laws:

  1. Where copyright protects the execution or expression of ideas or methods of operations and the source codes. The Patent is an exclusive right granted to inventions, which could be a product or a process that provides a new way of doing something or a new technical solution to a technical problem.
  2. Copyright doesn’t protect process, procedure or discovery. Whereas, patents are granted to inventions that have novelty, non-obviousness and industrial usage. However, computer software and algorithms fall into a different categories. Patent laws create an exception with scientific discoveries, mathematical formulae, and algorithms. Computer programs are considered a form of applied mathematics. In India, the software is not directly patented, however, a patent is granted when software is attached with novel hardware, an invention that is unique and capable of industrial use.
  3. Copyright protection comes into force the moment an original copyrightable work comes into existence. Copyright protection to software has been established in most countries with uniform international treaties. Whereas, a patent is granted after completing the examination procedure by the authorised authorities. The law related to granting patents in software is not harmonized. 
  4. Duration of Copyright on literary work subsites during the lifetime of the owner/author plus sixty years. Whereas, the term of a patent is 20 years before it goes to the public domain. 

Computer related inventions

As per the Indian Patents Act,1970 the Computer-Related Invention or CR Rights are the guidelines issued by the Office of Controller General of Patents, Designs and Trademarks for the examination of CRI. 

In the Patent Office 2016 guidelines, the examiners rely on these three-stage steps to examine the CRI applications:

  1. Construe the claim and identify the actual contribution server that verifies the IMEI number when the mobile code is sent to verify the person associated/owns/user of the said mobile device. 
  2. If the contribution is based solely on a business method, mathematical formula or algorithm then deny the claim.
  3. If the contribution levels in the field of a computer programme, suppose it is related to programming and not just to the algorithm then check whether it is claimed in conjunction with novel hardware that has a technical functionality. 

However, in the case of Ferid Allani v. Union of India and Ors, the petitioner filed a patent application seeking a grant of the patent for “a method and device for accessing information sources and services on the web”. It was held by the High Court of Delhi that the claims by the petitioner consist of both method claims and device claims, noting the bar on patenting a computer program is “per se” and not on all computer-based inventions. Thus, the effect that such programs produced including digital and electronic products are crucial in determining the test of patentability. Therefore, a patent application in the sphere of computer programs must be examined in such a way that it shows the “technical contribution” and if the invention shows the “technical effect” or a “technical contribution” it is patentable even though it is based on a computer program. It was also held that the effect which a computer program produces is crucial in determining patentability, further clarifying that the word ‘per se’ under Section 3(k) was incorporated to ensure that genuine inventions in the field of computer programs shall not be refused. 

Cases Laws 

Alice Corp. v. CLS Bank International

In this case, the USA court states the two-step analysis to claim the patent. The first is to ensure the patent claim must contain an abstract method of computation and principles thereof and the second is a new & unique idea. 

In this case, the court held that patents can not be granted to abstract ideas. The software, in this case, used a generic computer that is not unique to separate software from “abstract”

DDR Holdings v. Hotels.com

In this case, the United States Court of Appeals for the federal circuit upheld the validity of computer-implemented patents claims and held that software could be eligible to grant patents. 

Biswanath Prasad Radhey Shyam vs Hindustan Metal Industries (1978) 

In this case, it was held that for testing the patent “the obviousness must be strictly judged while determining inventive steps”. 

Microsoft Corporation vs Ms K. Mayuri and Ors. (2007)

In this case, it was held by the High Court of Delhi that when the consumers buy a computer, they might not be aware of the pirate copy of software loaded on their computer which amounts to infringement, and when it came to the notice of the plaintiff that the defendants were making business by unauthorised hard disk loading on computers, they filed the infringement suit and the court granted them a sum of rupees 10,00,000 as damages along with the cost. 

Meters Limited v. Metropolitan Gas Meters Limited

It was held that the patentee has an exclusive right to use his invention and if someone wants to use it then it is the duty of the person concerned to acquire necessary permission. 

Analysis 

The software has been given protection under copyright as well as the patent law to eliminate the chances of theft and to protect in such a manner that each part of the software gets equally protected. While patents protect the idea, copyright protects the source & written codes. Although both have cons and pros, it is fairly agreeable to take shelter under both laws.

It might seem like an arduous task to get software patented, however, under copyright law, it would not get the protection as the owner wishes to acquire. Also, it is pertinent to note here that an invention is a process of genuine human contribution and if a contribution lies in both the combination of hardware and software to the computer programme then only software is patentable. Mere contributions only to software deny its patentability. The TRIPS Agreement under Article 10 provides that computer programs shall be protected as literary works. While establishing patentability, the focus should be on the underlying substance of the invention and not on the particular form in which it is claimed. The patents upon software can be granted when it matches the technical effect on the hardware i.e. the technical nature of the hardware that involves technical advancements compared to already existing knowledge and/or economic significance. And the claim must be taken as a whole and not separately. 

Conclusion 

Although there are several contentions when it comes to protecting software. Many argue that it must be protected under copyright law, whereas, for some, granting patent protection will enhance and broaden the scope of protection. While copyright protects the written source code, patents protect the invention. Software per se would come under literary or computer programmes if it is a software code that is protected under copyright law. However, it could be patentable because the contribution is along with the software and hardware of a system to execute a function. Software protection not only provides economic value to the software developer but also promotes creativity and invention. 

References


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