Software Protection: Copyright or Patent?

Software in the simplest form can be understood as a set of instructions, data or programs which is used to operate computers and execute specific tasks. Software not only makes your computer hardware perform important tasks but also helps your business work more efficiently. Technology is the backbone of development in industries. Today, many technological innovations rely on software. The right software can lead to new ways of working. Software-related inventions are becoming increasingly popular due to the development of new technologies such as machine learning algorithms and mobile applications. These are in the form of source codes and object codes, which take a lot of skill, time and labor to develop them but also require human intellect. Computer programs have a market value and can be copied and used by unauthorized persons. Hence it should be protected under a strict legal regime. With the beginning of a digital era, every transaction or work has been made and there is easy access to all the required information and platforms for making communication easier and simple. But these inventions need to be protected by some laws to stop infringers from copying the work and to provide legal remedies.

Here the question arises whether the computer software will be protected under Copyright law or patent law?

Protection under Copyright Law:

Copyright is a well-recognized form of intellectual property right. Copyright is an exclusive right of the author to copy the literature produced by him and stop others from doing so. This concept was originally concerned with the field of literature and arts. The technological advancements in recent times, copyright protection has expanded considerably.

In today’s era copyright law has extended protection not only to literary, dramatic, musical and artistic works but also sound recordings, films, broadcasts, cable programmes, and typographical arrangements of publications. Computer programs have also been brought within the domain of Copyright law. The amendment was introduced in 1984 and included computer programs within the definition of literary work and a new definition of literary work came. The philosophical justification for including computer programs under literary work was that computer programs are the products of intellectual skill like other literary works require time and skill. Section 14 [i] of the Act defines the term copyright as to mean the exclusive right to do or authorize the doing of the following act in respect of a work.

The programmer invests the skills and time for the creation of the software; hence it is needed to protect the work of the owner. According to Copyright law, all software programs fall under Copyright laws. Therefore, protection is available only to the form or expression of an idea and not to the idea itself i.e.  Protection of copying of source code or a portion of it, and not the copying of the process of idea. Under Copyright Protection, it is protected for 60 years (depending upon the particular country). Hence, protecting software programs under Copyright law (which, in any case, is automatic) appears to be remunerative.

Further, Section 2(ffc) of the Copyright Act defines ‘Computer program’ 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. Hence, the software program can certainly be protected under Copyright law.

Section 2 (o) of the Copyright Act defines “literary work” and includes computer programs, tables and compilations including computer databases. As per the definition, the computer programme comes under copyright law.

Copyright Protection is the best suitable intellectual property for computer software. Copyrights are generally preferred as the criteria required for the grant of copyright protection is less stringent. Copyright is inherent and comes into force as soon as one finishes his/her work. The creator instantly owns the right to control distribution, which all are permitted to copy the work, etc. Copyright protects the “original works of authorship”, which in software means the code itself.

Advantages of Copyright Software Protection:

1. Copyright protection is less stringent as the copyrights are inherent and comes into force as soon as one finishes the work.
2. Protecting software program under Copyright law appears to be lucrative as copyright protection extends for the author’s lifetime with 60 years.
3. The process of obtaining a registration is fast and low cost.
4. Certain rights granted to the owner of the work and remedies in case of copyright infringement which allows the owner to claim legal actions in case of infringement and software piracy.
5. It offers protection of the structure, organization, and sequence of the software.

Protection under Patent Law:

An invention is unique in itself, method, composition or process. It may be an improvement upon a machine or product or a new process for creating an object. An inventor is a person who creates or discovers an invention. The word inventor comes from the Latin verb in the venire, invent, to find. The invention that achieves a completely unique function may be registered as a patent. As far as India is concerned, since the software is not patentable per se and the law relating to the patentability of software is still not harmonized internationally, some countries have accepted the patentability of computer software.

Section 2(1) (l) of the Patents Act 1970 [ii], states that “‘new invention’ means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of a 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.”

Section 3(k) of the Patents Act, 1970 specifically states that “computer program perse” is not a patentable subject matter. It can be considered as a patentable subject matter if the software invention offers a technical solution to a technical problem. If it does not have the potential to cause a further technical effect beyond the inherent technical interactions between it would not be considered a patentable subject. Software once patented will be valid for 20 years.

Section 3(k) makes it clear that computer programmes cannot be patented; the words ‘per se’, added through the Patents (Amendment) Act, 2002 [iii] allow accommodating certain computer programmes and software as registrable patents.

The intention behind adding of the words in the definition is that ‘per se’ can be found in the Joint Parliamentary Committee’s views when they introduced the Patents (Amendment) Act, 2002. According to the Committee, the intention was to provide the patents to those computer programmes those who include certain other things which are to or developed upon such a computer programme, thus making them eligible to be called inventions.

In the case Ferid Allani V. Union of India & Ors. [iv] The court elaborated on the patentability of computer programmes even when Section 3(k) poses as an obstacle to such patents. The facts of the case were that Ferid Allani, the applicant, filed for the patent of “a method and device for accessing information sources and services on the web”. The Indian Patent Office rejected the application on grounds of Section 3(k). The matter went to the (Intellectual Property Appellate Board) IPAB, which confirmed the rejection and thereby to the Delhi High Court through a writ petition.

Here, the Court cleared that the bar on patenting is in respect of “computer programs per se” and not all inventions based on computer programs. Noting the prevalence of computer programmes in modern products such as ovens, automobiles, and refrigerators, the Court stated that it would be retrograde to state that such inventions are not patentable.

The court further noted that if an invention demonstrates a technical contribution, it is patentable even though it may be based on a computer programme. Thus, this is one of the most important judgments when it comes to patenting software in India as it clears the air that Section 3(k) is not to be applied to all inventions using computer programmes or software.

Software tools that are purely business methods would again not be granted patents.

In the case of Yahoo v. Controller of Patents & Rediffcom India Limited [v]

Yahoo’s claim was for a software tool targeting search terms relevant to Yahoo’s business. However, the IPAB did not accept the patent application and held the same as being a business method embodied in technology as these advances will not give any advantage to the patentee.

In order to make the software patentable the following parameters are to be ensured:-

Invention: if invention is related to computer where software is essential and gives a technical effect; and

That the invention is more than a mere technical effect by software, i.e. there must be a tangible element which interacts with the software and thus making the set of software and tangible element software.

1. the invention must be of a patentable subject matter;
2. it must be creative and innovative;
3. it must involve an inventive step (be non-obvious); and
4. the disclosure of the invention in a patent application must meet certain formal and substantive standards

Under patent protection not only is the expression of the idea protected, but the whole idea and the process and the function of the idea get protection. Patenting software may come with various economic benefits. The patent grants an exclusive right over the invention to the inventor for a limited period of time. Patenting software would also encourage innovation. Since patenting comes with several monetary benefits inventors actively try to develop new types of software. The economic benefits which obtained from patenting software can be reinvested in further research.

Advantages of Patent Software Protection:

1. Patenting software comes with the monetary benefits; the advantage to get the software patent is that the economic benefits from the invention can be reinvested in further research and development.
2. Under patent protection not only the expression of the idea protects, but the whole idea and the process and the function of the idea get protection and the software once patented is valid for 20 years.[vi]
3. Once a person is granted a software patent, the inventor has the exclusive right to make, use, license, and sell that software invention.
4. A patent over a software invention can be used to prevent others from utilizing a certain algorithm without permission or to prevent others from creating software programs that perform patent-protected functions.
5. Patent protection prohibits other parties from reproducing the protected concepts, features, and processes underlying the software even if the source code was not reproduced, and a new source code was developed independently.

From all these facts we get the answer of our question that computer software can be protected under both but software gets copyright protection as soon as he/she completes the work but to get the patent software protection there is a certain procedure to get the software patented as some requirements are needed.

Which is better: Copyright or Patent?

All the works that are creative require protection as both intellectual property mechanisms are good in itself. But the more creative works only get the patent which fulfils the eligibility to get the software patented. As patent can be considered as the powerful protection for the software which protects the whole idea not only the expression of an idea, whereas the copyright is less stringent as compared to the patent and gives protection to the software for around 60 years. Both works in their own way and have merits and demerits.

The patent is a powerful protection if it fulfils the criteria; there is no better shielding than a patent. Accordingly, Patent offers broader protection. Patent can only be granted in certain cases, not in every case. Hence if the patent is not granted then copyright can be granted in such matters.

Conclusion: Software and technology play a crucial role in daily to daily life and to protect the work It is such a gift given by the law to the people to register their work under the copyright of software to get the protection of their work. Generally, it gives protection from infringers to not copy the work of others. It gives assurance to the developer that their right will not be infringed by any user. Hence to give software copyright was such a great initiative by lawmakers to add computer software protection under Copyright Act, 1957 in 1984.

References: 

1. Copyright Act ,1957
2. Patent Act, 1970
3. Patent Amendment Act, 2002
4. Writ Petition © 7/2014 & CM appl. 40736/2019
5. Writ Petition No. 4462 of 2010
6. Patent Act, 1970

Disclaimer: The present article intends to provide general guidance on the subject, and you can also consult us in your specific case.