Intellectual Property Protection in Software Industry

The computer was born not out of a need to solve a serious number-crunching crisis.[1] By 1880, the U.S. population had risen so much that it took more than seven years to tabulate the U.S. Census results.[2] So, to get the job done faster the Government sought a faster way which gave rise to punch-card based computers. These computers were huge and took up almost an entire room.

If we go through the history of computing projects we can make out that software was created long before the first electronic computers came to be.[3] The credit for the invention of the software in the mid-1800s goes to Charles Babbage. [4]

Intellectual property rights are at the root of the software industry. Innovations made in the software products can quintessentially be protected by patents, copyrights and trademarks. Patents and copyrights provide protection to the software itself. On the other hand, Trademarks protects the names or symbols used to create a distinguishable identity in the marketplace. 

Copyright protection generally extends to protect the expression of any idea, but not the mere idea itself.[5] The application of copyright protection for software products was established internationally via the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).[6] In case of Software, the protection provided Copyright is basically on the source and object code along with certain unique and original elements of the user interface.

Section 2 (o)[7] defines ‘literary work’ which includes “computer programs, tables and compilations including computer databases.” Section 13[8] provides “the categories of work in which the copyright subsists which includes original literary work.” The author of a work is the first owner of copyright in the work.[9] However, in case of employer-employee if a work is made in course of employment under a contract of service or apprenticeship, the employer shall be the first owner of the copyright in the above of any contract to the contrary.[10] These provisions of the copyright law are applicable mutatis mutandis[11] to computer software/ programmes as well.

The copyright owner holds a bunch of exclusive rights preventing unauthorized using, making, selling or distributing copies of the work. Violation of any of the exclusive right will lead to infringement of copyright and such violation is subject to liability for damages or statutory fines.

Article 27 of the TRIPS Agreement makes patent protection available to inventions in all fields of technology, only if they meet the minimum requirements of novelty, utility and non-obviousness.[12] The protection offered by patentis wider than that of copyright, as copyright protection extends only to a specific expression whereas patent protection extends to the underlying functionality of an invention. Because patents can offer broader protection than copyrights, they turn out to be more valuable if they can be obtained.

However, obtaining patent protection is a lengthy process and is more expensive.

Trademarks can protect the name of a software, its logo and taglines, and prevent competitors from using similar names. Trademarks protect software brands, but not the code that runs the software.  For example, “ADOBE” is a registered trademark for a variety of software products and services[13].  Any materials that are identified as the originator of specific product or service can be registered as a trademark. 

A trademark will not protect the software program itself from recreation or imitation.[14] If a design of a program is to be protected, then copyright protection should be sought for.

Author:  Debopriya Mukherjee, B.A. LL.B(Hons.) Amity University, Kolkata, Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any  queries please contact/write back to us at swapnils@khuranaandkhurana.com.

References:

[1]Kim Ann Zimmermann, Live Science Contributor, History of Computers: A Brief Timeline

[2] ibid

[3] The History of Software development

[4] ibid

[5] Dr. M.K. Bhandari, Law relating to Intellectual Property Rights(5th edtn, Central Law Publication, 2017)

[6] G. Krishna Tulasi and B. Subba Rao “A detailed study of patent system for protection of inventions

[7] Copyright Act, 1957

[8] Copyright Act, 1957

[9] See section 13(2) of the Copyright Act, 1957

[10] N. Mahabir “India: First Owner Of Copyright

[11] A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856

[12] See Article 27 o the TRIPS Agreement, 1 January, 1995

[13] Xavier Morales, Esq., “Can I Trademark Software?”

[14] Dr. M.K. Bhandari, Law relating to Intellectual Property Rights(5th edtn, Central Law Publication, 2017)

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