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Intellectual Property (IP) Protection for Computer Softwares in India

 > Corporate Lawyer  > Intellectual Property (IP) Protection for Computer Softwares in India

Intellectual Property (IP) Protection for Computer Softwares in India

Computers have become an integral part of our digital lives which helps reduce the burden of tasks on humans with efficiency and effectiveness. Software is set of instructions and programming for performing various tasks, in the most general sense. It is important to know what protections are granted to the programmer(s) as it involves a lot of time, effort and creativity of the person who is helping to make the process easier for users.

SOFTWARE COPYRIGHT PROTECTION
Copyright gives protection to the author’s expression of work. It aims to protect code functions that form the software in the computer.
Section 2(ffc) of the Copyright Act 1957 which lays out the definition of “computer programme” as “a set of instructions expressed in 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”; read along with section 2(o) of the Copyright Act 1957 which defines “literary works” includes computer programmes, tables and compilations including computer [databases] protects software or computer programmes as “Software work” under “Literary works” as per the Copyright law of India.

How to get software copyright protection?
All you need is a duly filed copyright application along with copies of work both source and object code that come under the definition of complete coding under Rule 70(5) Copyright Rules 2013, the prerequisite is mentioned as “Every application for registration of a computer programme shall be accompanied by the source and object code. This should be in its programming language and machine-readable format which protects new versions of the same software by the above mentioned procedure.

The most basic problem faced by the programmer(s) is that by basic modification/alteration to the same coding can become a separate claim for the 3rd party in entirety which infringes the rights of the original creator.
However, to deal with certain situations the concept of “flavor of minimum requirement of creativity” was brought before Court in the case of Eastern Book Company & Ors vs. D.B. Modak & Anr, (2008) 1 SCC 1 in this case the Hon’ble Supreme Court held that there should be a substantial amount of creativity that is required for separate claim of ownership over such copyright. The expression that is in the form of coding is protected and also prevents from substantial copying of the expression in the infringed work.

CAN SOFTWARE BE GRANTED PROTECTION UNDER THE PATENTS ACT,1970 ?
Section 2(1)(l) of the Patents Act 1970, mentions that “new invention” means any invention or technology which has not been anticipated by publication of any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art”. On the contrary section 3(k) mentions that “a mathematical or business method or a computer programme per se or algorithms ”are not inventions and therefore not patentable.

The Interpretation of the use of words “per se” was elaborated vide Report of the Joint Committee (Rajya Sabha, 2001) stated that this change has been proposed because sometimes the computer programme may comprise of certain other things, ancillary thereto or developed thereon. The intention here is not to discard them for grant of patent if they are inventions. However, the computer programmes as such are not intended to be approved patent.

The term “per se” has been contentious ever since but in the important case of Ferid Allani v Union of India W.P. (C) 7 of 2014. The Court gave a liberal approach as it allows patentability to computer softwares. It is mentioned that if it consists of technical effect it shall be granted patent “If the invention demonstrates a technical effect or technical contribution it is patentable even despite the fact that it may be based on a computer program.”

There are Guidelines for Examination of Computer related Inventions (CRIs) which mentions the essentials;
1) Novelty- it is a prime requirement
2) Inventive step
3) Industrial Application- that means it can be made/used in the industry
Another similar judgment was in the case of Telefonaktiebolaget LM Ericsson v. Intex CS(OS) No. 1045 of 2014 where Ericsson was granted injunction against Intex for any device infringed with eight of its Standard Essential Patents (SEPs)

Software is mainly protected under the Copyright Act, However if it passes the Guidelines for Examination of Computer Related Inventions, it can be granted patent which gives a better protection over the work created by the original programmer(s). It can be summarised that the software has to pass the triple test to become a patent that means it has be an invention that adds tangible element(s) and is not merely software.
Authored By: Adv. Anant Sharma & Shivangi Ghosh

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