India has recently emerged as a leader in different areas of focus such as operating system platforms, network management, banking, insurance, health care, manufacturing, and so on. With software development in India on such a massive scale, there is a strong need for IPR protection. This new development has prompted a proposal to broaden the scope of Intellectual Property Rights (IPR), to include within its scope issues such as unlawful creation or piracy, which pose a threat to the software business.
Software is essentially a collection or set of programs, methods, data, or instructions that direct a computer on what to do and are meant to execute a certain job. Adobe Photoshop, Google Chrome, PowerPoint, Adobe Reader, and more applications are some examples. Software is a collection of programs dependent on the Operating System that allows hardware to do a specific task.
Copyright is an IP right that is granted for the expression of any “literary work” or “artistic work” in a fixed medium. According to the Copyright Act 1957, A painting, a sculpture, a drawing (including a diagram, a map, a chart, or plan), an engraving, a photograph, a work of architecture or artistic craftsmanship, a dramatic work, literary work (including computer programs, tables, compilations, and computer databases), musical work (including music as well as graphical notations), sound recording, and cinematographic film are all examples of “work.”
Protecting Software Using IP
In India, the Copyright Act of 1957 protects original expression, and computer software is protected as copyright in and of itself. In other words, it can be understood as the expression of the computer software i.e., the script of the code is considered a literary work. This could also include tables and computer databases. However, the software code must be the original creation of the developer and it must exhibit his efforts and skills. The author of a work is the original owner of the work’s copyright.
Section 13 specifies the types of work that are protected by copyright, including original literary work. Section 2 (o) of the Copyright Act lists “computer programs, tables, compilations, and computer databases” under “literary work.”
As stated in sections 14 and 57, the Copyright Act protects the writer’s economic and moral rights in copyrighted work, including rights in computer software/programs. Apart from the right to sell or provide on commercial leasing any copy of the computer software/programs, the copyright owner has the rights to reproduce the work, issue copies of the work to the public, and develop any cinematographic films or sound or adaptation of the work.
While Copyright is the de-facto protection given to software, it may not always be the best form of protection for monetization. This is because copyright merely protects the expression and not the ideas inherent in the source or object codes. Consequently, organizations may generally prefer to get Patent or Trade Secret protection for their software advancements. Software can be protected under the Patent Act only if it has a technical effect and is not a program per se. Trade secrets, while technically having no time limits, come with a whole other set of problems, chief of which is that it may be comparatively easier to reverse engineer similar software, as trade secrets do not cover reverse engineering.
IPR laws attempt to protect various types of IPs, however, the issues lie in the improper classification and segregation of IPs under various categories. Whilst, for now, an owner while selecting an IP can choose based on which IPR category provides for better protection, the process and decisions may be convoluted and confusing. The protection for computer software should have been made under the ambit of technical innovation as it is much more likely that it shall have a technical effect rather than just being a basic script of code. In addition, IPs which can fit in more than one classification should be deliberated upon more.
Author: Sejal Chaturvedi, Legal Intern at PA Legal.
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