Nishita Shrivastava | NUJS, Kolkata | 28th October 2019
Introduction
Information technology refers to “combination of software and hardware products and services that people use to manage, access, communicate, and share information.”[1] With the aim to regulate various facets of information technology, the Indian Information Technology Act, 2000 defines ‘information’ to include “data, message, text, images, sound, voice, codes, computer program, software and data bases or micro film or computer generated micro fiche.”[2]
The revolution in information technology has made not only the information accessible but made life easier by innovation in information technology. As per the Garner Report, the IT industry is expected to have growth rate of about 8.3% in 2019.[3]And software is considered to be as fasted growing industry in information technology. Every new advancement and development in software industry is changing the nature of software and thus, having huge impact on almost all sectors of industries.
But this tremendous growth in software industry has thrown new challenges in intellectual property regime as to the protection of hardware and software of the computer. The intellectual property in computer comprises essentially in three forms- patents for the hardware, circuit layout rights for the electronic circuit and copyright or patent for computer program/ software.
Computer program are defined 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”.[4]The computer software essentially is a part of the computer system which is intangible form unlike hardwares. They are of two types-Operating software which performs basic function of the computer such as opening of a folder, etc., while Application software uses operating software to perform more advanced and specialized function.
The computer programs are written in programming languages. The programming language consists of two types of code- source code and object code. Source code refers to the codes written by the programmers is the high level language which is converted by compiler into low level language together with the object code to perform certain function at hand. In other words, source code is converted by the compiler into machine understandable language called as object code which is binary code to execute or perform certain task.
The most common and acceptable form of protection available to the computer programs is copyright protection which considers it as ‘literary work’. However, the copyright protection of computer program often suffers from idea-expression dichotomy. The copyright law only protects the ‘expression of idea’ and ‘idea’ in itself is not the subject matter of the law. Moreover, the copyright law only protects the literal codes in the written form and therefore, the software can be easily reverse engineered to get the desired result just altering the few code. Therefore, scholars argues for stronger and full protection of computer programs.
The paper aims to deals with justification and jurisprudential development for protection of computer program. The paper then examines the development and legal framework of protection of software under different intellectual property regime namely trade secret, copyright and patent regime. Moving ahead, the paper attempts to highlight the idea expression dichotomy and protection of literal and non-literal element of computer program. Later on will move on to the vital debate concerning copyright or patent protection of computer program. And, then will lastly look on the position of protection of computer programs in other major jurisdiction.
Justification For Intellectual Property Protection To Software
With the revolution in semiconductor industry, it became cheap and easy to make computers, which in turn enabled the advancement in software industry. The traditional direct relationship between the designer and customer got diluted and gave rise to the usage of computer program by millions of customer just by sitting at home. [5] However, cost of creating the computer program remained high, though its replication and distribution become stress-free. This led to the problem of unauthorized and illegal use of the computer program as the intellectual property of computer programmer is being taken away without giving him fruits of his labour.
In this background, the need to provide intellectual property protection of computer program was realised. Since the creation of computer program involves intellectual labour and creativity of the computer programmer, the scholars argues for extension of intellectual property protection to the computer program. The justification for legal protection of computer program can be traced from jurisprudential theories:
- Natural Right Theory: John Locke, the main proponent of natural right theory argues that man should be the owner of his own property and thus, should be able to utilize fruits of his labour.[6] The creation of computer program involves efforts and labour of the programmer who has invested his time and creative mind in writing the code and thus the natural right theory calls for the protection of such works to restrict the other person to use without creator’s permission.[7]
- Utilitarianism Theory: The theory as propounded by Jeremy Bentham talks about cost-benefit analysis, or more precisely the principle of “greatest good for the greatest number”.[8] The theory argues for providing ‘economic benefit’ to the computer programmers who has actually written the code by application of their creative intelligence because it acts to incentive and promote innovation in the society. If not, the motivation behind the creative work and innovation would be lost.
- Personality Theory: The theory recognizes the need for assertion of property rights for the self-development of the individual. The theory argues for the recognition and protection of moral rights of the computer programmers as the code they write are result of their own thoughts and experience.[9] The programmer has paternal or maternal affinity with the program or the code so written by him.[10] Therefore, computer programs should be provided legal protection to enable the coders to associate their codes with their personality and to offer proper recognition to their moral rights.
Protection Of Software Under Copyright Regime
The extension of copyright protection to software though sounds acceptable and undebatable today, it was not the case in the beginning of the information technology revolution. The initial U.S. Copyright Act, 1909 does not explicitly included software protection, however the Copyright Office received its first copyright application for protection of computer program in 1961 filed in the form of tape, a print out and a magnet tape.[11] The copyright office registered these under Copyright law in the year 1964 under the ‘Rule of Doubt’ principle’.[12] However, with the enactment of Copyright Act, 1976 the law recognized the protection of computer program[13] and later amended in the year 1980 to include definition for the same in line of National Commission of New Technological Uses of Copyrighted Works (CONTU) recommendations.[14]
Under the Copyright Act, 1956 of United Kingdom, the protection of computer program found no place till 1984. However with the case of Alice Computer Inc. v. Computer Edge Pty Krd[15] the court recognized the existence of copyright in object code of the computer program.[16] This finally paved the way for the Copyright, Designs and Patents Act, 1988. Similarly, the Indian Copyright Act, 1957 was amended in the year 1994 to include computer program as ‘literary work’.
The copyright law provides computer programmers with essentially four types of rights:
- Right to make copies
The copyright law provides exclusive right to the owner of the copyright to make copies or to reproduce his/her work in any form. In the context of computer program which can be given through license, the copyright law seeks the permission of the owner before the exploitation or use by any other third party. The copyright law prohibits any person other than owner of the computer program to copy or reproduce his coding without due permission.
- Adaptation Rights
Adaptation rights in the context of computer program refers to the creation of another computer program based on the existing work of some other person by making some modification to it.[17] Source code thus attracts adaptation rights, however major difficulties are faced in terms of object code because it is essentially the work of the compiler rather than the programmer.
- Right to distribute
The copyright law provides exclusive rights to the writer of the computer program to sell and distribute his work.
- Rental Rights
Rental rights include the renting of the program subject to receiving back any economic or commercial benefit accruing out of the same.
The copyright law essentially provides protection during the lifetime of the author plus the extra period ranging from 60 years to 70 years after the death depending upon the jurisdiction and thus, same is applicable to the computer program as well.
The copyright law however offers protection to the ‘source code’ only and fails to protect the ‘object code’ because copyright concern itself with the protection of ‘expression of idea’. Moreover, the scope of protection of computer program under copyright regime is also ambiguous especially with regards to non-literal elements of the computer. The extra longer period for the protection also does not suits the dynamic software industry.
A. Idea Expression Dichotomy
Under the law of copyright, it provides protection to the ‘expression of ideas’ and does not extend any protection to mere ‘ abstract ideas’. The very rationale behind the same is that it might happen that two person have the same idea, but the manner of implementation or expression may vary. Therefore, it helps in accommodating several expression for the same idea.
However, in practicality this distinction between idea and expression of ideas often finds its boundaries blurred. This transformation from idea to expression often are so intrinsically linked that it becomes difficult to separate the two and thus, raises challenges as to the scope of the copyright law. The attempt to resolve idea-expression dichotomy was made by the United States Supreme Court in the case of Baker v. Selden (1879)[18] wherein the court held that the copyright extends to provide protection to the manner of expression of the idea and not on the idea per se because manifestation of idea be achieved in multiple ways. The court went ahead to point out that copyright protection to ideas would result in providing monopoly to the copyright holder which can hamper new ideas and creativity.[19]
However, the distinction between idea and expression sometimes get blurred and the two are said to be merged, More, precisely there are certain works which can be expressed in only one manner. The doctrine of merger thus says that in such case, the copyright protection cannot be availed because offering protection to such intrinsically linked or merged idea-express would result in granting monopoly to the copyholder and would be against the greater public good.
On the other hand, the doctrine of Scenes a Faire is employed to the protection of copyright over essential elements of expression of idea without which the idea cannot exist. The United States court in the case of Thomas Walker v. Times Life Films Inc.[20] while examining the literary work of the plaintiff and screenplay work of the defendant describing crime in South Bronx held that this would not constitute scene a faire because elements of thieves, prostitutes, car etc. are common affair and thus could not be granted protection.
Applying the same in the case of copyright protection of computer program, the copyright holder of the computer programr have right to restrict others from copying the literal code of his work but does not have any right to prohibit the utilization of the same idea by other person.[21] Thus allowing the other person to develop and create the same computer program by employing just different language or form or structure.[22] In the case of Apple Computer Inc. v. Franklin Computer Corporation[23] the court upheld that the subject matter of the copyright protection in the case of computer program includes only form and substance of the instructions and not the very idea itself.
B. Literal And Non-Literal Element Of Computer Program
The copyright protection of computer program include only the written code i.e. the literal elements. The issue thus has been raised with respect to the protection of non-literal element of the computer software such as structure or format etc.
The very first case which took into account the dilemma of literal and non-literal element of subject matter was Whelan Associates, Inc. v. Jaslow Dental Laboratory[24], Inc. wherein the Whelan has developed a program for managing dental lab and the same has been developed by Jaslow using different programming language and machine. The question thus raised whether the copyright protection of software includes only the literal elements or it includes the overall structure of the program as well. The court relying on Baker v. Seldon[25] applied the idea-expression dichotomy to the non-literal elements of the program and emphasised on the end sought/purpose to be achieved by the program. The court thus developed ‘look and feel doctrine’ and held that the structure of the program is part of the expression of the idea and thus, subject to copyright. The court’s rationale behind protection of non-literal elements of software to incentive the programrs and provide due recognition to their efforts.
Later, in the case of Lotus Development Corp. V. Paperback Software Internationals[26] whereby the question with regards to copyrightability of the user interface was raised. The court applying the Whelan case afforded the protection to the user interface and also formulated a three step test to resolve idea expression dichotomy. Firstly, the court should distinguish between idea and expression within the program. Secondly, determining whether the said expression of the idea falls within the category of essential elements of the expression of idea or is mere incidental to it. Thirdly, determining the substantial similarity between the two program in quality as well as quality.
In yet another case of Broderbund Software Inc. v. Unison World Inc.[27] the question regarding the copyrightability of structure, appearance and sequence of the computer program was raised. The court came to the conclusion that since there are alternative means and methods to design the alleged computer program, the defendant has infringed the copyright.
The judgement of Whealan was heavily criticized as it relies on the metaphysical distinction between idea and expression.[28] The critics argues that underlying computer program does not only include a single idea, but contains multiple ideas in the form of subroutines which interact with each other.[29] Thus, Whealan fails to take into account the holistic nature of the computer program.
Finally to cure the challenges posed by the Whealan case, the court in the case of Computer Associates International v. Altai International[30] evolved Abstraction-Filtration-Comparison, a three step test. The first step involves dividing the computer program into different level of abstraction. At the lowest level of abstraction, a computer program is nothing but compilation of different sets of instruction consisting of modules and at higher level of abstraction, it includes the vey function of those modules.[31] The Second step involves determining whether each level of abstraction is an idea itself (which is dictated by element of efficiency, external factors and public domain) or mere incidental to the idea.[32] Lastly, the third step involves comparison between the expressions left at each level of abstraction with the accused’s software.
However, the test fails in the cases where the idea and expressions are so intrinsically linked or merged together that it is difficult to make distinction between the two as happened in the case of Gates Rubber Co. v. Bando Chemicals Industries Ltd. [33]The doctrine of merger says that in instances where there is only a single way to express an idea, the idea-expression merges and thus is not subject to copyright protection.
Protection Of Software Under Patent Regime
The lack of adequate protection offered to computer program by the copyright regime led to the demand for protection under the patent regime of intellectual property rights. The patent protection provides protection to the idea and expression i.e. object and subject code in its entirety subject to fulfilment of ‘inventive step’ criteria and the exclusive right over the program for the duration of 20 years. That’s to say, for patentability of software it needs to be new and original, useful and should novelty. The patent protection to computer programs allows patent holder to have competitive edge over the other in the market and also acts to incentivise the innovation in the industry.
Though currently, some jurisdiction offer protection to computer program under patent regime. However, it was not the case initially. For instance, the United States Patent Office initially took stand that computer program are not patentable.
In the case of Gottschalk v. Benson [34]the United State Supreme Court rejected the claim for patent protection of mathematical algorithm. However, the court took U-turn in the case parker v flook [35]and granted patent protection to the mathematical algorithm subject to it being innovative.
In yet another case of Diamond v Diehr [36]the Supreme Court held that software or mathematical formulae though not patentable per se, but can be made subject matter of patents if attached with otherwise patentable object.
To provide a clear guidelines in the wake of these three cases, the United States’ Patents and Trade Marks Office (USPTO) developed Freeman-Walter-Abele test to determine whether alleged computer software will be patentable subject matter or not.[37] In the case of Arrhythmia Research Technology, Inc. v. Corazonix Corporation[38] the court summarized the aforesaid test and allowed the patentability of computer program used to detect heart activity.
In the case of State Street Bank & Trust Co. v. Signature Financial Group[39], Inc. the court allowed business method patent in computer program if ‘it produces in useful, concrete and tangible result.’ Later in the case of In re Bilski[40], the court discarded the useful-concrete-tangible test. In Bilski v. Kappos [41]he Supreme Court affirmed the previous case of In re Bilski and evolved ‘machine or transformation test’.
Finally, the U.S. Supreme Court in the case of Alice Corp. v. CLS Bank International [42]held that ‘implementation of the abstract idea’ through computer program would not be patentable and thus, the patent protection software implementation of an escrow arrangement is not patentable. The decision led to U.S. patent office to revoke patent of certain software who were mere implementation of abstract ideas.
Protection Of Software Under Trade Secret
With the rise and growth of the knowledge and information in today’s era, there is a need for protection of trade secrets and confidential information. Aside from protecting the software by way of patent, trademark, or by copyright, the law should also protect the source code and object from being misused. Trade secrets provide economic benefits to software companies in numerous ways considering the volatile and growing nature of the industry. The creation of the computer program requires huge funds and resources, however the dissemination and replication of software are relatively easier. Moreover, the existing copyright protection to software is ineffective because it fails to protect the object code of the program, thus making computer program prey to the reverse engineering by the competitors.
Moreover, such information which if made public on the pretext of getting other protection like patents or copyrights will lead to serious injuries to the company as mostly the trade secrets are information about business practices or even a formula. Companies thus prefer to keep trade secrets as they can easily maintain that secrecy which in return give them economic edge in the market. Thus, the need for the protection of computer program via trade secret is often resorted. The trade secret protection of computer program enables the secret holder to have competitive advantage over other competitors.
The information is said to be Trade Secret if the information fulfils three essentials that are[43]:
A. the information must be secret,
B. it has some commercial value, and
C. the holder must have taken some reasonable efforts to keep it a secret.
These trade secrets and confidential information can be protected under different jurisdiction either by legislation, the Non- Disclosure Agreements, the Non-Competent and Confidentiality Clause. In recent years, trade secret law in the US has largely become statutory. The Uniform Trade Secret Act (UTSA) has been adopted (sometimes with modifications) in most states.[44] Nonetheless, and despite the UTSA’s widespread adoption, the restatement definition retains vitality and is often referred to by the courts during the course of their deliberations in applying the UTSA.
The Economic Espionage Act (EEA) of 1996 provides for trade secret protection at the federal level. The EEA was enacted as a federal criminal statute. The EEA does not provide for a private civil right of action. Accordingly, a victim of trade secret theft seeking redress must persuade the federal prosecutor in its judicial district that their particular case is worthy of prosecution.
In India, software as a trade secret can be protected via Indian Contract Act, 1972 in the form of Non-Disclosure Agreement or Non-compete clause and confidentiality clause. Non-Disclosure Agreement is a legal document or contract between at least two parties (mostly employer employee) that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to or by third parties.[45] Non-Compete clause or covenants are used in contracts under which an employee agrees not to pursue a similar profession, trade or business in competition against the employer. The Indian Contract Act, 1972 provides a framework of rules and regulations regarding formation, performance, discharge and breach of contracts and deals with the legality of such covenants.[46]
Though there is lack of proper legislation dealing exclusively for protection of trade secret or confidential information, India courts have resorted to principles of equity, justice and good conscious to uphold the legal validity of the contractual obligation arising out of the Indian Contract Act, 1872.
The concept of shrink-wrap license is often thus extended under the trade mark regime for filling the gaps of the copyright and patent regime.[47] The trade secret protection provides blanket protection to all the elements of the computer program including the underlying idea and the expression. Unlike copyright and patent protection, the trade secret allows the holder of computer program to exploit his intellectual property for infinite duration as long as his creation is not in the public domain. Moreover, for the trade secret protection of software no application or proving of technicalities or fees or involvement of government is required.
However, the protection of software under trade secret regime is also problematic. Since traditional trade secret law dealt with protecting formulae, process or business method from reaching the public domain, but this is not the case in software industry. Under software industry, the owner of the software wants his creation to be widely distributed and used by the public at large in exchange of economic incentive and restricting others from using the same.[48] Since software are granted by ‘object code’ licensing, the trade secret regime falls prey to the menace of reverse engineering by the end users.
The Vital Debate: Copyright v. Patent Protection Of Software
Due to the very complex nature of the computer program, offering protection under intellectual property regime is often challenging. The computer program consists of millions of codes and modules, thus protecting each and every codes and sub-modules becomes a herculean task. Moreover, the dynamic nature of software industry is making the computer program more complex and advanced, thus merging the very distinction between idea-expression.
The copyright protection of the computer program though widely accepted in the present time, suffers from idea-expression dichotomy and fails to provide protection to object code of the program susceptible to reverse engineering. On the other hand, patent law though attempts to provide protection in its entirety to computer programs, concerns regarding the longer duration and monopolistic nature is raised.
The proponents of copyright protection to computer programs argues that it saves time and cost unlike patent protection which needs the approval of administrative authority. The copyright protection subsist as soon as the programmer writes the code and there is no compulsion to get it registered. The protection of ‘expression of idea’ under copyright also promotes innovation and creativity by utilization of the underlying idea in different manifestation. That’s, to say there is less fear of infringement. The duration of lifetime of the author plus 60-70 years after the death depending on the jurisdiction also provides huge window for the exploitation of rights.
On the other hand, the proponent of patent protection of computer programs points out the inherent difficulties posed by the copyright regime and thus argues for stronger form of protection. The patent protection of software fills the void created by copyright by granting protection to the computer program as a whole including object code i.e. idea as well. Moreover, considering software as ‘invention’ under patent regime allows the patent holder to exclude others from making, using, selling his invention and thus, the doctrine of fair use is inapplicable. Moreover, patent protection acts to incentive computer programmers or developer to innovate and advance the software.
However, the critics of patent protection to computer program raises following issues:
- Procedural Difficulties: Unlike copyright, for the protection of patent one must have to apply to the patent office which often takes 2 years which is quite high in comparison to the product life cycle of the software itself.[49] Moreover, the procedure and protection under patent law entails huge cost and expense.
- Fulfilment of technical requirement: The patent protection requires the computer program to have ‘inventive step’ which becomes very difficult to prove in the case of software. Moreover, with the innovation in software industry a single computer program might include millions of code involving thousands of patents.[50]
- Time duration of 20 years: Considering the dynamic nature of the software industry, granting exclusive rights to patent holder to exploit and restrict the computer program might result in hindering growth and development of the industry.
- Fear of infringement: Since patent law provides protection to the broad subject matter, it might result in hostile environment in the industry and will create fear of infringement.
- Creation of Monopoly: The exclusive right for the period of years along with such broad protection of subject matter will likely result in creation of monopoly by the patent holder.
Looking Around The Major Jurisdiction For Protection Of Software
With the rapid innovation and advancement in computer technology, the need for stronger intellectual property regime was felt which gave rise to the debate concerning protection of computer program under patent regime. The proponents for the patent protection to computer software argues that it is much stronger and effective form of protection in comparison to copyright law as patent law protects both object and source code of the program. Few jurisdiction thus have recognized computer program to be eligible for patent protection, however other jurisdictions are offering only copyright protection to the same.
International conventions and treaties also does not provide clear framework regarding the patent protection of the computer program. For instance, Article 27 of the TRIPS Agreement leaves on the individual member nation to decide the subject matter for the patentability of any technological invention. Moreover, the scope Berne Convention is only restricted to copyright protection of computer software.
United States:
It is settled principle in United States that computer program are patentable subject matter if they are claimed as a part of hardware.
European Community:
Article 52(2) of the European Patent Code clearly excludes computer program to be eligible for patent protection. However, the practice of European Patent Office point out towards different trend. The patent office often grants patent protection to computer program if it fulfils technical requirement under the patent law. In the case of IBM[51], the court held that software are patentable if they make any technical contribution. Similarly, in the case of Hitachi while emphasising on the requirement of technical contribution held that it can either take form of physical attributes or functionality.
Finally, the European Commission proposed EU Software Patents Directive which clarified the subject matter of patent law under EU patent law.[52] The directive extends the patent protection to the computer software only if it is embedded in any hardware.
India:
The parliament through the Patent Amendment Act, 2005 attempted to extend patent protection to computer program under clause 3(k) of the Act. However, the proposal could not be passed by the house of parliament. Thus, the computer program in India are only offered protection under copyright law and thus, are not subject matter of patent protection.
Japan:
Article 2(3)(i) of the Patent Act includes computer programs to be subject matter of patent protection subject to qualification relating to ‘creation of technical ideas utilizing the law of nature.
Conclusion
Considering
the dynamic and growing nature of the software industry, the researcher
believes that the best form of protection available to the computer program is
under the copyright regime. Though it throws challenges in the form of
idea-expression dichotomy and weaker level of protection, but copyright law
allows space to accommodate other program and. Thus, can help in furthering
innovation and development of the software industry alongside balancing the
rights of the programmers as well.
*LLM Student, Corporate and Commercial Law, National University of Juridical Science, Kolkata.
[1] Information Technology, (18 September, 2019, 5.00 PM), https://www.defit.org/information-technology/.[2] Section 2 (v), Information Technology Act, 2000.
[3] 10 Top Software Development Trends in 2019 (20 September, 2019, 12.23 AM), https://hackernoon.com/10-top-software-development-trends-a12d25f5fd2d.
[4] Section 2 (ffc), Copyright Act, 1957.
[5] HUGH LADDIE, THE MODERN LAW OF COPYRIGHT AND DESIGNS at 797-798, Butterworths Publications, Vol. I, 2nd ed. 1995.
[6] The Declaration of Independence and Natural Rights, CONSTITUTIONAL RIGHT FOUNDATION, (18 September, 2019, 5.25 PM), https://www.crf-usa.org/foundations-of-our-constitution/natural-rights.html.
[7] Balew Mersha & Kahsay Debesu, Theories of Intellectual Property, ABYSSINIA LAW, (18 September, 2019, 5.25 PM), https://www.abyssinialaw.com/online-resources/study-on-line/item/468-theories-of-intellectual-property.
[8] William Fisher, Theories of Intellectual Property, HARVARD LAW, (18 September, 2019, 5.37 PM), http://www.law.harvard.edu/faculty/tfisher/iptheory.html.
[9] Fekadu Asmamaw, Software Patents: Justifications And Arguments, ABYSSINIA LAW, (18 September, 2019, 5.40 PM), abyssinialaw.com/blog-posts/item/1469-software-patents-justifications-and-arguments.
[10] DAVID BAINBRIDGE, SOFTWARE COPYRIGHT LAW at 10, Butterworths Publication (1999), 4th ed.
[11] Md. Rahmatullah, Atif Siddiqui, Software Protection under Intellectual Property Rights Regime: An Analysis, 24 ALJ (2016-17) 209.
[12] Vikrant Narayan Vasudeva, Copyright-patent dichotomy in context of computer programs, (2008) PL Sept 9.
[13] supra note 10.
[14] supra note 11.
[15] 1984 FSR 246
[16] supra note 11.
[17] Hsiu-Ru Chien and Esther Lin, Copyright infringement issues concerning adaptations of computer software, LEXOLOGY, (18 September, 2019, 6.00 PM), https://www.lexology.com/library/detail.aspx?g=3802ceca-6595-447d-93c4-c80d978ccb38.
[18] 101 U.S. 99 (1879).
[19] Adarsh Ramanujan, Idea Expression Dichotomy in Copyright Law, LAKSHMISRI (19 September, 2019, 11.00 AM),https://www.lakshmisri.com/Uploads/MediaTypes/Documents/WHITE_PAPER_IP_article_idea_expression_dichotomy_esheeta-REVISED.pdf.
[20] 784 F.2d 44 (2d Cir. 1986).
[21] Pramod Nair, Copyright Protection for Computer Software, (2004) 7 SCC J 31.
[22] Id.
[23] 714 F.2d 1240 (3d Cir. 1983).
[24] 107 S. Ct. 877 (1987).
[25] 101 U.S. 99 (1879.
[26] 740 F.Supp. 37 (D.Mass. 1990).
[27] 648 F. Supp. 1127.
[28] Karen J. Kramer, Extending Copyright Protection to a Computer Program’s Structure. Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc. 797 F.2d 1222 (3d Cir. 1986), 65 Wash. U. L. Q. 471 (1987).
[29] Id.
[30] 982 F.2d 693.
[31] Philip Greenspun & Ors., Abstraction-Filtration-Comparison in Software Copyright Litigation, (20 September, 2019, 3.00 PM), http://philip.greenspun.com/software/abstraction-filtration-comparison/.
[32] Id.
[33] 167 F.R.D. 90 (D.C. Col. 1996).
[34] 409 U.S. 63 (1972).
[35] 437 U.S. 584 (1978).
[36] 450 U.S. 175 (1981).
[37] supra note 10.
[38] 958 F.2d 1053.
[39] 149 F.3d 1368.
[40] 545 F.3d 943.
[41] 561 U.S. 593 (2010).
[42] 573 U.S. 208 (2014).
[43] Article 39 of Agreement on Trade-related aspects of Intellectual Property Rights (TRIPS).
[44] Ibid.
[45]Basit Rida Hijab, Classification of Clauses in Non-Disclosure Agreements (NDAs), CENTER FOR LANGUAGE ENGINEERING, (20 Spetember, 2019, 4.17 PM) at http://cle.org.pk/research/news10/presentation/ClassificationofClausesinNon-DisclosureAgreements.pdf.
[46]Singh and Associates, Non-compete clause in the Indian law of contracts – an insight, (20 September, 2019, 7.55 PM), https://www.lexology.com/library/detail.aspx?g=31ca32d5-6c37-4f0e-a647-869666352b17.
[47] Gregory J. Maier, Software Proprotection–Integrating Patent, Copyright And Trade Secret Law, Journal of the Patent and Trademark Office Society, March 1987, Volume 69, No. 3.
[48]Jay R. Dratler, Trade Secret Law: An Impediment to Trade in Computer Software , 1 Santa Clara High Tech. L.J. 27 (1985).
[49] Robert C. Scheinfeld & Gary M. Butter, Using Trade Secret Law to Protect Computer Software, 17 Rutgers Computer & Tech. L.J., 381, 405-06 (1991).
[50] supra note 10.
[51] ECLI:EP:BA:1998:T117397.19980701, 1998.
[52] The patentability of computer program Discussion of European-level legislation in the field of patents for software, DIRECTORATE-GENERAL FOR RESEARCH, EUROPEAN PARLIAMENT, (20 September, 2019, 11.50 PM), http://www.europarl.europa.eu/meetdocs/committees/juri/20020619/SoftwarePatent.pub.pdf.
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