Indian software companies in the past have expressed little interest in protecting software as an intellectual property, but in the present competitive environment, they have recognized its importance.
India was the first country to provide protection to the software through the Copyright Act, As per Article 10 of the TRIPs agreement, where WTO members must treat computer programs, as literary works, as defined under Article 2(1) of Berne Convention. However it has not updated its protection levels to match the needs of the current digital era, where tribulations like copyright infringement and software piracy are prevalent.
Software can’t be categorised as a traditional intellectual property into the existing legal IP framework. It’s not a unitary work but encompasses numerous elements, that can fall into different categories of IP protection.
Indian IT industry is worth $180 billion, with such expansion and growth, the related IP laws have been amended regularly. Yet, we still have no law to exclusively deal with software and computer programs, not even the Information Technology Act of 2008 talks about its IP protection. So we urgently require a legislation to address the same.
IPR is the foundation of software industry. Software is a creative innovation of the mind, using the intellect of a person. Software, can be defined as a set of instructions or programs instructing a computer to do particular tasks.
Software And IP laws
Software is generally IP protected by, copyright, patent, trade secrets and trademarks, each providing a different type of legal protection. While patents, copyrights and trade secrets protect the innovation/ technology itself, trademarks protect the names or symbols used to provided a distinctive character and distinguish a product in the market.
The conventional method of software protection is Copyright, due to the program code being considered literary or artistic work. It is easier to obtain but is not the robust protection there is.
Patents, even though rarely granted to software, due to many stringent criteria to be fulfilled, is the strongest way to protect an IP.
A patent provides an exclusive legal monopoly to the patent holder to make, sell and use an invention. It secures certain features of the program that cannot be shielded by copyrights. Copyright protection does not safeguard procedure, process, or discovery. Patents can be obtained for ideas, methods, algorithms, and functions of a software program which satisfies the criteria under the act.
Copyrights protects the software’s source code, object code, any unique user interface features and from literal replication.
Conversely, software is not just a literary expression of source code, but includes functions that are independent of its grammatical construction. It also contains various components which copyrights cannot protect. It is because of this ambiguity that it is challenging to categorize software into traditional systems of intellectual property.
Software And Copycopyrights
protect the expression of an idea but not the idea itself. Its safeguard covers specific works, like a particular software code.
Section 2(ffc) of the Copyright Act 1957 defines “computer programme” as “a set of instructions expressed in words, codes, schemes or other forms, capable of making a computer perform a particular task or achieve a particular result”, section 2(o) while defining “literary works”, says it includes computer programmes, tables and compilations including computer databases.”,
Copyright is the primary right of a software, a written and recorded software code automatically gets copyrighted, if it is original. The owner/author of the copyrighted software, has exclusive right over it. Any third party who is not granted licence by the owner, violating this right will be liable for copyright infringement on the grounds of considerable copying and absence of minimum requisite of creativity.
As specified by the Indian Copyright Office, the first stage to obtain copyright protection for a software or computer program is to decide if the subject matter is eligible to be copyrighted. then a copyright application as per form XIV to be made along with copies of source code and object code in its programming language and machine readable form must be submitted as given under rule 70(5) Copyright Rules 2013.
To bring copyright laws in India into full TRIPs and WIPO compliance, the laws need to be made stringent to disallow making multiple copies of a registered software package in multiple computers, etc. Major drawbacks of software copyright protection in India are weak enforcement and deterrence of infringement, small penalties, low conviction rates and delay in judgements.
Software And Patent
Software patents are powerful economic tools, protecting features of a program that cannot be covered by other IP laws, like the operational methods and program principles.
Unlike USA, India doesn’t usually grant software patents because they fall under the category of unpatentable subject matter.
As per Sec. 3 (k) of the Patent Act, 2002, computer program cannot be patented per se.
Thus to patent a software program, it must not merely be a business or mathematical method or algorithm or a standalone computer program. To avoid the claim of sec. 3 (k) it is essential to show that the software has technical effect, and is attached to/ component of a hardware invention.
When patent applications contain subject matter related to software inventions, they’re classified into three, including, Method / Process, Apparatus / System, Computer readable medium and Computer Program Product.
Claims for a method or a process is patentable after eliminating those, that are only a business methods, mathematical formulae, algorithms or computer program.
Claims for an apparatus or a system, are granted if the invention fulfils the 3 conditions under section 2(j)  of the patent act namely, novelty, inventive step, and industrial applicability. They are patented in means plus function format for a combination of hardware and software.
Claims for Computer readable medium, or, Computer Program Products, are characterised as computer programs per se, and hence not patentable.
To apply for software patents, as per the Indian patent act and the Indian patent office’s guidelines for examination of software patents / computer related inventions (CRIs), the software patent applications shall claim for innovative methods, including every step and flow diagram, the novel hardware system claims and elements of the system with corresponding methods / processes.
After the CRI guidelines 2016, more software are given patens in India. Example in 2017 the following 4 software patents were granted.
To Facebook two Pro–Business – Method Patents, to Apple for Method on Browsing Data Items and to Google for Information Retrieval System
Then again patenting software have some downsides too, like impediment to social benefits, the practicality of 20 year patents in a rapidly evolving industry, technological obsolescence etc.
Software And Trade Secrets
software’s idea, concept, structure or design specifications can be regarded as a trade secret. This protection depends on the nature and distribution of the software. If the source code is kept confidential, the distributed object code can be moderately protected. This protection can be given until the protected software maintains its trade secret status.
A vulnerable software which can easily be copied is unfit to be a trade secret. In India trade secrets are protected under law of contract and torts, so may not be protection in rem. A main drawback to this protection, is that it will not cover features of software that are easily determined, and provides no remedy to reverse engineering or independent development using publically available data.
Unlike copyrights or patents, violation of Trade secrets are not considered infringement but as theft. To uphold the software’s legal status as a protectable intellectual property, the owner has to substantiate that the trade secret is not normally known and rational steps were taken to protect its secrecy.
Software piracy is the act of illicitly obtaining, copying, replicating, and distributing software without proper license.
Despite the presence of several laws to meet the requirements of the TRIPS agreement, the IP protection to software is not methodical and inadequate. This concern is largely due to software piracy where India is unfortunately one of the leading countries.
Use of pirated software is extensive in India, due to its cheap price and easy availability. A survey by Microsoft has revealed that in India, 91% of the new computers and laptops came pre-installed with a pirated version of Windows 10.
Indian CASE LAWS:
Electronic Navigation Research Institute Vs. Controller General of Patents:
A Patent was claimed for the invention titled “A Chaos Theoretical Exponent Value Calculation System”. The invention proposed a mathematical formula to determine and evaluate the time signals, even though the software had technical effects, the patent office denied the application as falling under section 3(k).
Enercon India Limited v. Aloys Wobben, Germany:
In this instant case, the invention provided for automated steps for controlling the wind turbine using a computer program. The IPAB decided that it was not merely a computer software per se or rules or algorithms, but used an external system to implement the program, so the patent application was granted.
Similar judgements were given in Yahoo v Controller of Patents & Rediffcom India Limited and Accenture global service GMBH vs. the assistant controller of Patents & Designs.
India is currently embracing technological innovations more rapidly and IP protection, mainly software patenting stands as a hurdle in it.
It is the primary choice for setting up IT outsourcing companies due to its huge talent pool. According to me, the dire need of the hour is to recognize the software, not just as a literary work but as an invention. Thus the government should give profound thoughts about granting patents to software often and amend or pass laws to enable smooth IP protection. Due to the dynamic nature of the software industry, a 20 year patent may not be necessary, so the limitation period for software patents can be reduced to for example, may be 10 years.
Due to lack of special legislation trade secret protection is also limited. The IT act must be amended to talk about IP protection of software.
Regarding copyright protection, deterrence and punishments for copyright infringements must be made stringent and delay in judgements can be avoided creation of special intellectual property courts. Courts shall interpret and clearly define fair use. For only judicial exposition will let it to transcend from per se status to be eligible to be patented. When Indian software companies are given power to protect their software as a patented entity Indian economy will experience a massive boost, thereby leading to development and welfare of the people.
Deepikka R S