2/15/22, 8:55 AM How to protect my computer software - iPleaders

How to protect my computer software

By Diva Rai - September 16, 2021

Image source - https://bit.ly/3AmWWnO

This article is written by Vasundhara Thakur graduated from IME Law College. This
article emphasises the legal aspect of software protection under Copyright and Patent
laws, comparative overview, analysis and conclusion thereof. 

Table of Contents 
1. Introduction
2. Software copyright protection
3. Software patent protection
4. Why is software patent or copyright important
5. Copyright versus patent – overview
6. Computer related inventions
7. Cases Laws 
7.1. Alice Corp. v. CLS Bank International
7.2. DDR Holdings v. Hotels.com
7.3. Biswanath Prasad Radhey Shyam vs Hindustan Metal Industries (1978) 
7.4. Microsoft Corporation vs Ms K. Mayuri and Ors. (2007)
7.5. Meters Limited v. Metropolitan Gas Meters Limited
8. Analysis 
9. Conclusion 
10. References

Introduction
Softwares are programmes that direct the computers perform the task assigned to the
computer. It comprises data, programmes, a procedure that helps in the smooth
functioning of a computer system. Here the question arises as to why software needs
legal protection? Well, the software is a set of rules that commands the computer what
to do and how to do a particular task. The software is developed by using different codes

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which require human intellect, time, labour and special skill sets in the form of the
invention and original work, although intangible in nature, however, valuable for the
developer and the end-user which comes under the ambit of Intellectual Property laws
such as copyright and patents. In this era of digitalisation where people are dependent
on technology and various software, it is pertinent to protect the software from infringers
with proper legal remedies. The software can be protected under both copyright and
patent. 

Software copyright protection

Copyright provides to its owners or creators the exclusive right to exploit their work for
and to make copies of such creative works while sharing their creativity or creative work
with the world. Certain rights of the original creators of the computer programme are
protected under Section 14(b) of the Copyright Act, 1957 (hereinafter, referred to as the
Act). 

Copyright in software comes under the definition of literary work as specified under
Section 2(o) of the Indian Copyright Law. The literary work is the product of the labour,
skill and capital expended by the author on their work and is protected under Section
2(ffc) of the Act. Computer software includes many items like the programmed manuals
and papers, punch cards and magnetic tapes or discs required for the operation of
computers. Program manuals, paper and computer printouts may be considered literary
work. However, the concept or idea of algorithms used in computer programming is not
capable of copyright protection. Punch cards that contain information in a particular
notation, programmes devised for the working of computers, magnetic tapes and discs,
including floppy discs which contain information recorded through electronic impulses
may be considered as databases and accordingly comes under the definition of literary
work. 

Certain acts constitute copyright infringement of computer programmes as mentioned

under Section 51. It is pertinent to note here that when a computer programme is sold
i.e. the transfer of program copy is transferred then a purchaser of the said programme
can use it to make copies of the work specified, but not for any commercial gain by
replicating the software for commercial gains. These exceptions are specified under
Section 52 as certain acts which will not be called an infringement of computer
programmes. However, in the case of a licencing agreement, a licensee can use the
software and/or possess rights over the computer programme/ software as specified and
agreed upon in the Licensed Agreement. 

In Copyright law, a licence is permission to do an act and contravention of such act

would be unlawful. In the context of Software Licencing, the owner or author retains
substantial rights and control over their software. The license provides for the way to use
the programme, the copies to be made, distribution of the software or any other terms
specified by the Licensor. For example, when a person purchases Microsoft word which
comes with a protected key (a series of words and numbers), it does not give that
person the ownership of the software, instead, it gives the ability to use the software for
a specified time period and the specific purpose.

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As we know copyright on work comes into force from the time a copyrightable work is
developed or produced. However, for better protection on computer programmes the
Copyright Rules, 2013 under Rule 70(5) requires a person to file an application along
with the source code and the object code. Also, three complete copies of the works,
including the published and unpublished work. 

Software patent protection

A patent is an exclusive right granted to a person who has invented a new and useful
article or an improvement of an existing article or a new process of making an article. It
consists of an exclusive right to manufacture the new article or manufacture an existing
article according to the invented process for a limited time, after the expiry of the
duration of the patent, anyone can make use of the invention. In India, the term of a
patent is 20 years from the date of filing of an application which is subject to renewal.

Generally, an invention is considered as patentable if it satisfies the conditions

mentioned under Section 2(1)(ac) (industrial application), Section 2(1)(j) (invention)
and Section 2(1)(ja) (inventive step) of the Patents Act, 1970. 

As per the Indian Patent Law, the software is not patentable per se as specified under
Section 3k of the Patents Act, 1970. In India, the software is not directly protected under
the Patents Act, however, it could be patented if it is attached to novel hardware and
must be an invention that is unique and capable of industrial use. Also, in India software
is considered as a process that is executed when a computer functions a programme and
not merely an algorithm. 

Similar to copyright, patent laws also allow the patent owner to give license or assign
their patented work to any individual or third party giving them certain rights over
patented work. Such license is to be granted by a written agreement wherein all the
terms and conditions are precisely mentioned.

Why is software patent or copyright important

Software protection, with regards to computer programming, is mandatory as it prevents
the piracy of a software programme, also the source codes and any other portion of the
software which is regarded as “literal infringements of copyright”. However, the
protection under copyright laws is limited as copyright protects the execution of ideas
and not the idea itself. 

Whereas, software patents provide a broader ambit of protection as it protects the

creation of inventive concepts behind the work. Therefore, a patent is a better way of
protecting an original computer programme, although it is a bit difficult to obtain patents
on software especially in India. But with new guidelines and precedents set by the
European and the UK Patent offices, the process has become more achievable when it
comes to patenting software. The major criteria to grant patents are novelty,
inventiveness (non-obvious) and must be industrially applicable. 

Copyright versus patent – overview

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Both copyright law and patent law provide different kinds of protection to the software.
Where copyright provides limited protection, patent laws provide broader protection to
the software. Here are some differences to identify such protections under both the laws:

1. Where copyright protects the execution or expression of ideas or methods of

operations and the source codes. The Patent is an exclusive right granted to
inventions, which could be a product or a process that provides a new way of doing
something or a new technical solution to a technical problem.

2. Copyright doesn’t protect process, procedure or discovery. Whereas, patents are

granted to inventions that have novelty, non-obviousness and industrial usage.
However, computer software and algorithms fall into a different categories. Patent
laws create an exception with scientific discoveries, mathematical formulae, and
algorithms. Computer programs are considered a form of applied mathematics. In
India, the software is not directly patented, however, a patent is granted when
software is attached with novel hardware, an invention that is unique and capable of
industrial use.

3. Copyright protection comes into force the moment an original copyrightable work
comes into existence. Copyright protection to software has been established in most
countries with uniform international treaties. Whereas, a patent is granted after
completing the examination procedure by the authorised authorities. The law related
to granting patents in software is not harmonized. 

4. Duration of Copyright on literary work subsites during the lifetime of the owner/author
plus sixty years. Whereas, the term of a patent is 20 years before it goes to the public
domain. 

Computer related inventions

As per the Indian Patents Act,1970 the Computer-Related Invention or CR Rights are the
guidelines issued by the Office of Controller General of Patents, Designs and Trademarks
for the examination of CRI. 

In the Patent Office 2016 guidelines, the examiners rely on these three-stage steps to
examine the CRI applications:

1. Construe the claim and identify the actual contribution server that verifies the IMEI
number when the mobile code is sent to verify the person associated/owns/user of
the said mobile device. 

2. If the contribution is based solely on a business method, mathematical formula or

algorithm then deny the claim.

3. If the contribution levels in the field of a computer programme, suppose it is related

to programming and not just to the algorithm then check whether it is claimed in
conjunction with novel hardware that has a technical functionality. 

However, in the case of Ferid Allani v. Union of India and Ors, the petitioner filed a patent
application seeking a grant of the patent for “a method and device for accessing
information sources and services on the web”. It was held by the High Court of Delhi that
the claims by the petitioner consist of both method claims and device claims, noting the

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bar on patenting a computer program is “per se” and not on all computer-based
inventions. Thus, the effect that such programs produced including digital and electronic
products are crucial in determining the test of patentability. Therefore, a patent
application in the sphere of computer programs must be examined in such a way that it
shows the “technical contribution” and if the invention shows the “technical effect” or a
“technical contribution” it is patentable even though it is based on a computer program.
It was also held that the effect which a computer program produces is crucial in
determining patentability, further clarifying that the word ‘per se’ under Section 3(k) was
incorporated to ensure that genuine inventions in the field of computer programs shall
not be refused. 

Cases Laws 

Alice Corp. v. CLS Bank International

In this case, the USA court states the two-step analysis to claim the patent. The first is
to ensure the patent claim must contain an abstract method of computation and
principles thereof and the second is a new & unique idea. 

In this case, the court held that patents can not be granted to abstract ideas. The
software, in this case, used a generic computer that is not unique to separate software
from “abstract”

DDR Holdings v. Hotels.com

In this case, the United States Court of Appeals for the federal circuit upheld the validity
of computer-implemented patents claims and held that software could be eligible to
grant patents. 

Biswanath Prasad Radhey Shyam vs Hindustan Metal

Industries (1978) 
In this case, it was held that for testing the patent “the obviousness must be strictly
judged while determining inventive steps”. 

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Microsoft Corporation vs Ms K. Mayuri and Ors. (2007)

In this case, it was held by the High Court of Delhi that when the consumers buy a
computer, they might not be aware of the pirate copy of software loaded on their
computer which amounts to infringement, and when it came to the notice of the plaintiff
that the defendants were making business by unauthorised hard disk loading on
computers, they filed the infringement suit and the court granted them a sum of rupees
10,00,000 as damages along with the cost. 

Meters Limited v. Metropolitan Gas Meters Limited

It was held that the patentee has an exclusive right to use his invention and if someone
wants to use it then it is the duty of the person concerned to acquire necessary
permission. 

Analysis 
The software has been given protection under copyright as well as the patent law to
eliminate the chances of theft and to protect in such a manner that each part of the
software gets equally protected. While patents protect the idea, copyright protects the
source & written codes. Although both have cons and pros, it is fairly agreeable to take
shelter under both laws.

It might seem like an arduous task to get software patented, however, under copyright
law, it would not get the protection as the owner wishes to acquire. Also, it is pertinent
to note here that an invention is a process of genuine human contribution and if a
contribution lies in both the combination of hardware and software to the computer
programme then only software is patentable. Mere contributions only to software deny
its patentability. The TRIPS Agreement under Article 10 provides that computer
programs shall be protected as literary works. While establishing patentability, the focus
should be on the underlying substance of the invention and not on the particular form in
which it is claimed. The patents upon software can be granted when it matches the
technical effect on the hardware i.e. the technical nature of the hardware that involves
technical advancements compared to already existing knowledge and/or economic
significance. And the claim must be taken as a whole and not separately. 

Conclusion 
Although there are several contentions when it comes to protecting software. Many
argue that it must be protected under copyright law, whereas, for some, granting patent
protection will enhance and broaden the scope of protection. While copyright protects
the written source code, patents protect the invention. Software per se would come
under literary or computer programmes if it is a software code that is protected under
copyright law. However, it could be patentable because the contribution is along with the
software and hardware of a system to execute a function. Software protection not only
provides economic value to the software developer but also promotes creativity and
invention. 

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References
https://www.wipo.int/patents/en/ 

https://indiankanoon.org/doc/188548554/ 

https://copyright.gov.in/Documents/Copyright_Rules_2013_and_Forms.pdf 

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