Topic: Computer software and copyright protection
Under traditional principles of intellectual property protection, copyright law has served as the
principal source of legal protection for literary and artistic work, while the patent system and trade
secret law have been the primary means for protecting utilitarian works. Computer software as a
relatively new recipient of copyright protection, however, defies easy categorisation within the
traditional framework of the intellectual property system.
Since software was becoming commercially attractive and widely used in the late 1970s to the mid
1980s, software has been difficult to classify in order to assign it to a certain category of Intellectual
Property protection by virtue of its binary nature; it is debated if it represents a variation of
mathematical algorithm or invention. Commentators have sought to classify it under copyright,
patent, both, trade secrets or even as sui generis software right. Finally emphasizing on the written
form of “algorithm” of source code, software programs have been classified as literary work, hereby
making it eligible for copyright protection under Berne Convention and TRIPS agreement.
Background of computer software protection in IPR
Since software was becoming commercially attractive and widely used in the late 1970s to the mid
1980s, software has been difficult to classify in order to assign it to a certain category of Intellectual
Property protection by virtue of its binary nature; it is debated if it represents a variation of
mathematical algorithm or invention. Commentators have sought to classify it under copyright,
patent, both, trade secrets or even as sui generis software right. Finally emphasizing on the written
form of “algorithm” of source code, software programs have been classified as literary work, hereby
making it eligible for copyright protection under Berne Convention and TRIPS agreement Initially
WIPO14 started to consider the question of the legal protection of computer programs in the 1970s,
and, first, the idea of working out a sui generis system emerged. The sui generis protection covered
all three elements of computer programs: object code, source code and documentation. However,
the WIPO Model Provisions on the Protection of Computer Programs which provided for a sui generis
system were not followed by national legislators, and the idea began to prevail that copyright should
be applied for the protection of computer programs. In February 1985, WIPO and UNESCO convened
in Geneva a joint Group of Experts on the Copyright Aspects of the Protection of Computer Programs
which marked a decisive breakthrough in the choice of copyright as the appropriate form of
protection of computer programs, which can be assimilated to literary works.15 Patent protection
was not favored as a narrowly constructed definition of patentable subject matter, according to
which only inventions that brought about some physical change of matter were patentable, excluded
most computer programs from patent protection. Furthermore, the incremental nature of software
development was difficult to reconcile with patent laws requirements of novelty and inventive step.
Copyright law, was then thought to be appropriate, as it would provide for immediate and effortless
protection because its legal framework was already established and because it did not require
authors to comply with any formalities. Moreover, copyright law was considered to provide a
solution to the industry’s need for strong international protection, as copyright law was extensively
harmonized in international treaties, most notably the Berne Convention. After much pressure from
the computer industry, the law eventually caught up and the protection of computer software was
put beyond doubt. A few months later, several countries passed legislation clarifying that computer
programs were considered works, subject to copyright protection, and since then it has been
generally accepted worldwide that copyright protection should be applied rather than patent
protection or a sui generis approach.
Computer software as literary work
It is a well-established proposition that computer programs2 are copyrightable subject-matter, just
like any other literary work.3 Loading a program into computer memory, saving the program or
running it without authority may infringe copyright. Making an arrangement or altered version of the
program or converting it into or out of one computer language or code into a different computer
language or code is also an infringement.
Article 10 of the Trade Related Intellectual Property Rights Agreement (TRIPs) expressly provides that
computer programs, whether in source code or object code shall be protected as literary works
under the Berne Convention, 1971. The relevant provisions of the Copyright Act, 1957 which are
pertinent in this context are set out hereunder:
"2(ffb) 'computer' includes any electronic or similar device having information processing
capabilities;
(ffc) 'computer programme' means 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;
2 (o) 'literary work' includes computer programmes, tables and compilations including computer
databases; "
13. Works in which copyright subsists.— (1) Subject to the provisions of this section and the other
provisions of this Act, copyright shall subsist throughout India in the following classes of works, that
is to say,—
(a) original literary, dramatic, musical and artistic works;
Section 14 explains the meaning of copyright in the following terms:
"14. Meaning of copyright.-For the purposes of this Act, 'copyright' means the exclusive right subject
to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a
work or any substantial part thereof, namely-
(a) in the case of a literary, dramatic or musical work, not being a computer programme,-
(i) to reproduce the work in any material form including the storing of it in any medium by electronic
means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in
relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme,-
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on hire, or offer for sale or hire, any copy of the computer programme, regardless of
whether such copy has been sold or given on hire on earlier occasions;"
Thus, under Indian copyright law, computer programs are considered to be literary works and
accordingly entitled to copyright protection. However, few Indian courts have considered the scope
and extent of copyright protection in relation to computer software and for this purpose, it is
necessary to consider the jurisprudence evolved by comparable jurisdictions which have fleshed out
principles to enlighten the bare text of statutory laws in this regard.
Originality of computer programme
For copyright to subsist in a computer programme, the computer programme must be ‘original’ and
‘recorded’ in writing or otherwise. The requirement of originality is not an onerous one and does not
mean that the computer programme must be novel or unique in some respect. It merely means that
the programme has been the result of a modest amount of skill, labour or effort and that it originates
from the author.
The Copyright Act, 1957, specifically provides that copyright subsists in original literary works.90
Thus, a computer programme is required to be original in order to qualify for copyright protection.
The definition of “computer programme” in the Copyright Act, 1957, makes it clear that the
programme must contain a set of instructions expressed in words, codes, schemes or in any other
form including a machine readable medium. Further, a computer database, stored on tape, disk or by
other electronic means, would generally be a compilation and capable of protection as a literary
work. The protection however, depends on whether it satisfies the requirement of originality. In case
of compilations, the originality is not on the materials but on the manner of organization of the
material since in some cases the materials as such can enjoy separate copyright protection.
In Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber & Another 1995 PTC 278. the question of
the protection of computer databases came up for consideration before the Delhi High Court. The
Court held that a compilation of addresses developed by any one by devoting time, money, labour
and skill amounted to a ‘literary work’ though the sources might be commonly situated.
In Express Newspapers plc v. Liverpool Daily Post & Echo plc (1985) 1 WLR 1089. random numbers
selected by computer for a newspaper competition called ‘Millionaire of the Month’ were held to be
protected by copyright. The court rejected the argument that as there was no human author and
therefore the lists of numbers drawn by the computer could not be protected by copyright. The court
held that the human expertise in computer-derived works could be found to reside in the
programmes which produced the lists of random numbers.
Expression of computer software
The computer software, like any other work, has an expression of its own, which is in the form of an
application - with a front end and a back end. The front end, which is visible to a user, consists of
screen displays, symbols, design layout, commands, menu system, other non-literal elements etc.,
whereas the backend consists of object code and source code and other executable code. These
codes encrypt the computer software. For the purpose of copyright, both the front and back ends
are copyrightable.
The computer software may include copyrightable material in the form of preparatory design
materials, like flowcharts, diagrams, written specifications, form and report layouts, designs for
screen displays, etc; computer programmes (object code and source code) and other executable
code (executable file); software development tools, like relational database development systems,
compilers, report generators, etc; databases and data files; computer output, e.g. sound, printout,
computer file or data; screen displays; manuals and guides; programme languages (algorithms and
functions).
Distinction between form and idea
Under both the Indian and American systems of law, the protection available to a copyright-
protected work is protection in respect of the form and substance of the work and not
the idea behind the work. Therefore, applying this principle in the context of computer software, the
owner of the copyright over an item of software has the right to prevent any other person from
physically copying the code, as it is written, but does not have the right to prevent the utilisation of
the idea behind the code, provided the person utilising this idea does so in a manner that is different
from his arrangement of the code. Thus, it is necessary to note that unlike the case of a patent over a
mechanical product, the copyright over an item of software code does not entitle the author to
prevent another software developer from producing the same type of software in a different form
and structure.
However, at the same time, it needs to be stated that the point where the idea translates itself into
the expression of an idea is an issue that has been the subject of judicial scrutiny by courts in USA.
The following principle was laid down in Apple Computer Inc. v. Franklin Computer Corpn 101 US 99 :
25 L Ed 841 (1879) : 714 F 2d 124:
"Just as a patent affords protection only to the means of reducing an inventive idea into practice, so
the copyright law protects the means of expressing an idea; and it is as near the whole truth as
generalisation can usually reach that, if the same idea can be expressed in a plurality of totally
different manners, a plurality of copyrights may result, and no infringement will exist."
The court established that computer programs, whether in source code or object code, are protected
by copyright as literary works. This landmark case clarified that copyright extends to the machine-
readable form of software (object code) as well as the human-readable form (source code). The
court also ruled that embedding a program in ROM (Read-Only Memory) did not negate copyright
protection, as fixation in any tangible medium is sufficient for copyright
Interpreting this principle, it has been concluded that the basis for the determination of the
copyrightability of a software program was affirmed as being the intellectual property right, inherent
in the form and substance of the instructions to the computer and not to the idea behind their
arrangement. This would imply that creative copying of the instructions so as to result in the same
program being developed through the use of different lines of code would be deemed to be not a
violation of the copyright in the program, as the copyright vests in the instructions themselves and
not the end product.
Non-literal copying
The next issue that needs to be considered in this context is as to exactly what type of software
reproduction is hit by the offence of infringement of copyright, particularly in cases where the
alleged infringer had not copied the code line by line, but had taken something less specific. In this
regard, various tests have been developed by courts in USA, in order to arrive at a conclusion as to
the type of software and the extent to which it could receive protection. One such test has been to
discern whether the look and feel of the two programs was the same. If the answer to that question
was in the affirmative and if it could be shown that the defendant had access to the plaintiff's
program, copyright infringement was likely to have occurred.
The Whelan test
The question whether there could be copyright infringement in copying the "overall structure" of a
program, even if neither the object code nor the source code of the program had been copied came
to be examined by the US Court of Appeal, for the Third Circuit in Whelan Associates Inc. v. Jaslow
Dental Laboratory, Inc. 230 USPQ 481 (3rd Circuit 1986) In this case, the alleged infringer rewrote a
program that was originally coded in a particular computer language in a different programming
language. While evolving the look and feel test the court concluded (on the basis of prior decisions
that had held that there could be infringement of copyright in a play or book by copying the plot or
plot devices of the play or book when the total "concept and feel" of the alleged infringing work was
substantially similar to that of the copyrighted work) that the said test should apply to infringement
of copyright in computer programs.
The court also concluded that the detailed structure of a program was part of the expression of an
idea than the idea itself, and therefore, the copying of the expression of the idea in the program
would amount to an infringement of copyright. The court held that copyright protection of computer
programs may extend beyond the programs' literal code to their structure, sequence and
organisation.
The Altai test for infringement
However, this test was not adopted by the Second Circuit Court of Appeals which propounded a new
test in Computer Associates v. Altai 982 F 2d 693. In this case, ALTAI made sure that the literal
elements of its OSCAR program were no longer substantially similar to the literal elements of
Computer Associate's ADAPTER source code. While examining the question as to whether ALTAI'S
OSCAR 3.5 was substantially similar to Computer Associate's ADAPTER program, the following points
were established by the court in Altai case:
> It is essential for protection of literary property that copyright cannot be limited literally to the text,
else, a plagiarist would escape by making immaterial variations. Thus, where "the fundamental
essence or structure of one work is duplicated in another", courts have found copyright
infringement.
> Those aspects of a work which "must necessarily be used as incident to" the idea, system or
process that the work describes, are also not copyrightable. Therefore, those elements of a
computer program that are necessarily incidental to its function are similarly unprotectable.
> The principle laid down in Whelan test that the non-literal elements of computer programs was
entitled to copyright protection as literary works, is acceptable.
The court also seemed to opine that patent registration, with its exacting upfront novelty and non-
obviousness requirements, might be the more appropriate rubric of protection for intellectual
property of this kind. With this rationale, the court concluded that the test formulated by it which
would have the effect of narrowing the scope of copyright protection was in accordance with
legislative intent and fundamental principles of copyright law.
It is submitted that the narrow protection afforded to computer software under the law of copyright
as in Altai1 reflects the correct balance between the need to encourage creative work and also to
ensure that an undue monopoly which restricts free use and development of ideas is not created.
This is especially important given the fact that the term of copyrighted works in India is the lifetime
of the author of such works plus a period of 60 years. Such an extensive period of copyright
protection may be excessive and ill-suited to a computer program where the normal period of
obsolescence may be just a few years.
English courts have also adopted a similar approach to the protection of computer software.
In addition, courts in Canada, the United Kingdom and France have endorsed the Altai analysis.14
