PROTECTING COMPUTER SOFTWARE: COPYRIGHT OR PATENT
Author: Divanshi Gupta, IV year of B.com.,LL.B(Hons) from University Institute of Legal Studies, Panjab University.
Intellectual property is considered to be the cornerstone of the innovation of technology. The admission of intellectual property protection to computer programmes can be seen as a means of legal support for a particular industry and technology. Software also referred to as computer programs are the set of instructions in expressed words, codes, schemes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result.
The intelligent personal assistant of Apple – Siri, the word processor – Microsoft Word etc. are considered to be computer programmes. The software comprises the source and object code. The source code itself contains the references to the program or any text that can be provided in a package that may be in the form of manuals or explanatory material regarding the performance of the programme. All need to be protected because its creation involves, skill, time and labour and therefore the resultant work should be protected from any misuse or embezzlement.
The fast-growing software industry and the rapid pace of technological advancement have made it important to protect the intellectual property (IP) provided by software, programs and all those devices that use those programs and software. Computer Software is subject to cutthroat competition in the market. The owner of a computer program not only has to face competition but also suffers economic loss.
The software is vulnerable to piracy and can be accessed without payment. As software is both functional and expressive, then software is susceptible to protection by patent and copyright law both or some hybrid of the two. Copyright is widely used to protect a computer program because coding is similar to any other type of literary work. Software protection under the IPR method will not only protect the economic interests of the owner but will also enhance creativity and innovation. Conventionally, software has been subject to copyright wherein the protection was given as a literary work to the source code, the object code, in other words, to the look and feel of the software. However, the protection of copyright is considered weak as it protects only from unauthorized copying of the expression of the idea but not of the principle behind it.
SOFTWARE AND COPYRIGHT
Copyright, as the name suggests, is the legal right of the author to copy the literature produced by him and debars others from using it without permission of the author. It doesn’t protect the ideas, but the expression of ideas. In view of technological advancements in recent times, copyright protection has been expanded considerably.
Today, the copyright law has extended protection not only to literary, dramatic, musical and artistic works but also sound recordings, films, broadcasts, cable programmes and typographical arrangements of publications. Computer programs have also been brought within the ambit of copyright law. The owner of the copyrighted software has the right to store and reproduce the software. Any third party who acts similarly without authority will be liable for infringement of copyright. It is a settled principle that like any other literary work, computer programs are subject to copyright law.
Article 10 of the Trade-Related Intellectual Property Rights Agreement (TRIPs) stipulates that computer programs, whether in source code or object code, shall be protected under the Berne Convention, 1971 as literary works.
The definition of a literary work given in Sec. 2 (o) of the Copyright Act, 1957 includes computer programmes. It’s pertinent to mention that the Act does not differentiate between the source codes and object code, and therefore, both are covered under the literary work. Computer programme as stated above was included within the definition of "literary work" in 1984 and the new definition of "computer programme" under Section 2 (ffc) introduced in 1994 means a set of instructions expressed in words, codes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result. The rationale behind including computer programmes within the definition of ' 'literary work'' has been that the coding of a programme is the product of a cognitive process and involves intellectual skill like any other literary work.
The elements of a computer programme are literal and non-literal. The literal elements are those elements that are concerned with the literary aspects of a computer program. On the other hand, non-literal elements may include such things as the structure of the code. These elements look beyond the literary aspects and are primarily identified through the structure, sequence and arrangement of the working of a computer program. The Copyright Act, 1957 provides statutory protection to the literal elements of a computer program. The Courts to protect non-literal elements of software finds an overwhelming acceptance in foreign jurisprudence. In the United States, the Court in Computer Associates v. Altai has developed a three-stage test called ‘Abstraction-Filtration-Comparison’ (AFC) test to check infringement. Abstraction involves separating elements of a software like objecting code, source code, and then the the user interface. Filtration comprehends the examination of each element to separate copyrightable from non-copyrightable. Comparison involves checking the substantial similarity between plaintiff’s filtered copyrightable claims and defendant’s works.
The Copyright (Amendment) Act, 1994 has tried to address the issues relating to unauthorised copying of computer programmes and has incorporated internationally recognised standards and procedures for enforcement of copyright in the field of computer programmes.
SOFTWARE AND PATENTS
In the current competitive economy, patent protection is considered as a trade-off between the necessity to stimulate innovation and the evil of permitting a provisional monopoly to the innovator. It additionally helps in fighting the menace and commercial loss caused by piracy.
Unlike copyright that protects only the final work, software patent protects the imitation of features, elementary ideas. The patent is granted for an invention which may be related to any process or product. The fundamental principle behind granting a patent for an invention is novelty, inventive step, i.e., the non-obviousness and industrial applicability, i.e., the utility. Various countries favour patent protection for software innovation, some of them include the USA, Australia and Singapore. On the other hand, countries like India and European nations have more stringent laws regarding patent protection to software innovation.
So far as software patent is concerned, there is no legal definition of a software patent. Software patent as defined by the Foundation for a Free Information Infrastructure (FFII) is a patent on any computer performance realised by means of a computer program. The Indian Patent Office (IPO) refers to software-related invention as Computer-related inventions (CRI), which involves the use of a computer, network, or other programming platform where the implementation of features is in part or wholly found through the means of software. Insofar as CRIs are concerned, there are three sets of guidelines that have been published by the Patent Office. The guidelines issued initial are described as ‘Draft Guidelines’, the second document is entitled ‘Guidelines’ and the revised version released in 2017 is termed `Revised Guidelines‟.
The section 3(k) of the Patents Act, 1970 states that a mathematical or business method, a computer program per se or algorithms are not considered to be inventions. But it nowhere imposes a blanket embargo on patenting CIRs in India. Hence, inventions that disclose computer programs per se may be precluded under the provision of Section 3(k), but inventions containing computer programs or software that are not just computer programs may be patentable.
The Delhi High Court in Ferid Allani v Union of India adopted a liberal approach and reiterated that the test for determining patent eligibility is “if the invention demonstrates a technical effect or a technical contribution, it is patentable even though it may be based on a computer program”. The term technical advance or technical contribution is not defined in the statue.
Software-related invention has technical advance or technical contribution when a programme provides any solution to a technical problem or if the programme has been used to achieve any technical control over a technical process or programme is used to operate any technical instrument.
The Court considered Computer Related Inventions, 2013 (CRI guidelines, 2013) issued by the Patent Office which stipulate certain criterion to provide a technical effect. These are “higher speed, reduced hard-disk access time, more economical use of memory, more efficient data base search strategy, more effective data compression techniques, Improved user interface, better control of robotic arm, improved reception/transmission of a radio signal”.
Thus, not all inventions that are based on a computer program are unpatentable and since many inventions today are based on computer programs, it is “retrograde to argue that all such inventions would not be patentable”. The court proposed that the incorporation of words ‘per se’ were to ensure that genuine inventions based on computer programs are not refused patents. The only bar is computer programs ‘per se’ are excluded from patentability. The court further pronounced that Indian practices must confer with the international standards, and the restrictive approach of IPOs is contrary to global practices. The court expounded the suggestion that technical effect or technical contribution should be decided on the basis of guidelines, legislative material, judicial precedents and international practices.
There can be certain extra ordinary situations wherein the computer programmes or software may qualify as patentable, i.e., wherein the computer programme includes things thrived further upon or ancillary thereto, and manifests a technical effect or technical contribution, then it is subject to patent laws.
Altogether, in India the protection of computer software is under the copyright laws. Yet, there is a scope of protection of literal and non-literal elements of the software under patent laws. It is further stimulated that for the protection under patent law, it’s provided that it shall not be mainly an algorithm-based software but is an invention per se. In the Digital India, where measures are taken to transform India into digitally empowered society, protection of one's original work in the field of software and computers is imperative so as to promote innovation and creativity.