3/10/24, 1:03 PM Copyright Protection of Software under Literary Works | IIPRD

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Copyright Protection of
Software under Literary Works
 October 13, 2022  admin  Copyright

Introduction

A concept itself is not protected by copyright laws; rather, the form

or representation of an idea is. The computer language used to

describe the underlying idea is what is protected by copyright in a

computer programme, not the idea itself. The program’s coding is

done separately from one another. In this instance, the programme

has effectively articulated the fundamental concept. Thus, the

newly created code is the expression and is protected; but, a

program’s methods and algorithms are not. An algorithm is a set of

clear instructions for carrying out a task. It is a collection of

guidelines that specify the processes a computer must take in a

certain order in order to process information.

[Image Source: Gettyimage]

When it comes to
understanding

what a software

application is, the

software may be

thought of as a

collection of

instructions given to the device in order for it to generate the

intended outcome. Soft-lifting, hard disc loading and unlawful rental

are the three most popular types of software piracy. Additionally,

the excellent quality and simplicity of copying of pirated software

constitute a serious danger to the software business. In order to

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ensure that the author receives a fair return on his or her

investment and to foster future innovation, software must be

protected by intellectual property rights.

Software Protection in India

A concept is not covered by copyright; a work is only protected by

copyright when it is given practical embodiment as was stated in

the case of Sundial Communications (P) Ltd. v. Zee Telefilms Ltd. .

Detailed explanations of the principles governing what constitutes

copyright, how it came to be, who owns it, how to transfer or assign

it, how to licence it, how to use it, and the rights that it confers.
According to Engineering Analysis Centre of Excellence Pvt. Ltd. v.
CIT, copyright infringement with regard to computer software is

also explained when it does not occur.

The Indian Copyright Act and the Patents Act of 1970 both provide

legal protection for software in India, but both laws need a little
creative thinking to be employed successfully. For something to be
protected by the Patent Act, it needs to have some sort of

technological impact. If not, only the 1957 Copyright Act may offer
defence. Section 2(o) of the Copyright Act includes computer

software, charts and compilations, particularly computer

databases, in its definition of “literary work.” Therefore, it is

specifically protected. Computer software copyright infringements

are subject to the same penalties as other forms of infringement.
Detailed explanations of the principles governing what constitutes

copyright, how it came to be, who owns it, how to transfer or assign
it, how to licence it, how to use it, and the rights that it confers.

According to Engineering Analysis Centre of Excellence Pvt. Ltd. v.

CIT, copyright infringement with regard to computer software is
also explained when it does not occur.

Due to no copyright in court judgments unless specifically stated by

the court, the rule that states that if there is a common source, the

person relying on it must demonstrate that he finally went towards

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the known source from which he procured the material, using his

own skill, labour, and brain and not copying, would not apply. In
accordance with Section 52 of the Act, since there is no copyright
inside the original language of the judgements, thus it is clarified

that this decision will only apply to court decisions that are part of
the public domain as stated in DB Modak v. Eastern Book

Company. A literary work is computer software.

Non-Literal Copying

Literal copying is rather simple to spot, however examples of non-

literal copying seem to be harder to spot. Courts frequently follow

the practise of categorising computer programme components into

two groups:

i) Literal Components, including the source and object codes

ii) Non-literal Components: A computer program’s structure, flow,
and organisation

Therefore, a set of circumstances where the second programme is

implemented in various lines of source code and written inside a

distinct programming language, but nevertheless over borrows

some important non-literal elements from the original programme

like its structure, sequence, and internal organisation, would be a

case of non-literal copying.

In Computer Associated International Inc. v. Altai Inc. it presented a

three-step test, Abstraction-Filtration-Comparison, to determine

whether substantial similarity is met when proving copyright

infringement for non-literal elements of software. In Abstraction the

court breaks up the program into different levels, from very general

to very specific e.g. main purpose, program structure, modules,

algorithms, data structures, source code. In Filtration, the court

decides what components are absolutely essential to fulfilling the

abstract function of the program at the various levels. Also filter out

everything that is dictated by efficiency, external factors, or in the

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public domain. In Comparison, the court looks at the components

of the program which are not absolutely essential to fulfilling the

abstract function of the program to see if they are similar as stated

in Goodyear Tire & Rubber Co. v. Silverstone Tire & Rubber Co.

Banking and Finance.

When non-literal elements of the original programme are highly

comparable in a second programme, a copyright infringement

claim including non-literal copying may be made. Whelan

Associates v. Jaslow Dental Laboratory, which stated that by

allegory to other literary works, it would seem so that copyrights of

computer programmes can be violated even in the absence of

copying the literal elements of the programme.

Conclusion

Regarding suggestions to make the software protection a little

more airtight, the de-compilation right should be employed only

when there is no other way to make the second programme

interoperable. This can be the case, for instance, if the second

program’s APIs’ (application programming interfaces, which are

essential for achieving interoperability) source code is not publicly

accessible or the software vendor declines to make it available

upon request. Second, the right is only available to those who are

creating their own independent programme. Third, the person who

is doing the decompiling must also be authorised to use the

second software. Fourthly, the de-compilation should limit itself to

the portions of the second programme required for compatibility.

The information received via the de-compilation should also not be

shared with other parties or utilised to create programmes that are

substantially similar to the original, since this would violate the

owner’s intellectual property rights. These should lastly follow the

EU Software Directive .

Author: Arushi Guha, A Student of Symbiosis Law School, Pune,

in case of any queries please contact/write back to us via email to
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