Contributed by Khushboo Tomar
Singh & Associates

Under the copyright laws, protection is available only to the form or expression of an idea and not to the idea itself. The object of copyright protection in a computer program is not the underlying idea, but the computer language used to express that idea. The coding of the program is carried out independently. In this case, the idea underlying the program has expressed this idea. The new code thus constitutes the expression and is protected but the methods and algorithms within a program are not protected. Algorithm is a list of well-defined instructions for completing a task. It is a set of instructions on what steps are essential to process information by the computer and in what specific order it has to perform these operations in order to carry out a specified task.

Software in its simplest sense can be understood as a set of instructions provided to the computer in order to produce the desired result. The most common methods of software piracy are soft-lifting, hard disk loading and unauthorized renting. In addition, the ease of duplication and high quality of pirated software pose a great threat to the software industry. Thus, the software protection by way of intellectual property rights is necessary to ensure that the creator is adequately benefitted and also to encourage creativity and inventiveness in the future.

In India, software can be protected under the Copyright Act, 1957 or the Patents Act, 1970, and a touch of ingenuity, too, is required to protect it correctly. It can be protected under the Patent Act only if it has a technical effect. Otherwise it can be protected only under Copyright Act, 1957. Section 2 (o) of the Copyright Act defines “literary work” and includes computer programs, tables and compilations including computer databases. Thus, it is explicitly protected. The same remedies will follow from the infringement of the copyrighted computer software which are allowed in case of any other infringements.

Copyright infringement is basically exercising any of the rights of the copyright owner without any authorisation to do so. In cases of computer programs, the important rights are copying the code, and creating derivative works. In case of Zenimax v. Oculus, the jury found infringement of the right to create derivative works. It was a case of nonliteral copying.

It is a case of literal copying when a creative, and substantial part of code is copied as-it-is. Creativity doesn’t mean that the code needs to be complex or of high quality; it merely refers to the programmer’s ingenuity and a unique way of writing the code. Substantiality is something that is considered on a case-by-case basis by experts in courts.

Even in the USA, the Computer Software Copyright Act was enacted in 1980 to modify the meaning of the term ‘literary work’ to include ‘software’. Copyright protects an expression of an idea, and not the idea itself. This has been a stumbling block for copyright protection of software as only object and source codes can be categorised as the literal components of computer programs, and there are other non-literal elements like program structure, organisation, sequence, etc., which have been the points of contention for the courts. Protection of functions is possible under patents or trade secrets, however, if someone is not familiar with IP law, he will face an uphill task separating the functionality and the expression in source code. This ‘dichotomy between idea and expression’ is a central theme of this essay and the cases it attempts to compare and critique. Although the problems with software copyright have much in common with other works, there are a few issues unique to computer programs, the main focus would be to discuss such issues, more specifically issues surrounding non-literal copying of computer programs.

Non-literal copying of computer programs
A computer program is a complex combination of protectable and unprotectable components, hence protecting only the literary elements is not sufficient. Nonliteral copying refers to the copying of the structure, sequence and organisation of the code. Again, the presence of creativity and substantiality is necessary for it to be held as an infringement. Nonliteral copying is a vexing issue as the courts are still developing their understanding in this regard, as has been shown in many cases. This is because a code is both expressive and functional, and adjudicating on which functional aspects can be protected under copyright is more difficult than the traditional subject matters. The notion of nonliteral copying brings a lot of uncertainties with it as copyright is not supposed to protect functionality, but then it is held to be an infringement if a code purports to accomplish the same functionality with a slightly different approach in programming.

TRIPS set forth three different forms of protection for software: copyright, patent and trade secret regime. TRIPS includes a specific provision in Article 10 that expressly requires member states to protect software, whether in source or object code, as literary works under the Berne Convention. However, the member countries have a right to provide more extensive protection of intellectual property rights within their national legal systems.

India has undoubtedly made great strides in protection of computer software through copyright law but the protection through patent law still remains at a nascent stage. As, the strength of protection offered by Patent Law is much higher than that offered by the Copyright Law it would be in greater interest if attempts to strengthen the former for software protection are made.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.