Protection of Computer Programme: Copyright or Patent

Srishti Sneha | Student Editor | 24th August 2020

Introduction

In the twentieth century, there were numerous debates and discussions on the issue as to whether a computer programme should be patented or copyrighted[1]. This led to the adoption of the widely accepted principle that the computer programmes shall be protected under Copyright Law whereas the software-related inventions shall be protected under patent. Copyright protects the expression of the ideas, the operation of the program, and mathematical concepts, whereas the patent provides the exclusive right to software which provides a new solution to a problem. In India, Copyright is granted at the inception of the program, whereas for the acquisition of a Patent an application must be made to a government agency. However, each of them has its own set of pros and cons. This article shall try and acquaint the reader with the same.

Protection under the Copyright Act, 1957

As mentioned above, protection under copyright is granted at its inception and shall extend to 60 years after the death of the author. Section 2(o) brings a computer programme under the ambit of literary works thereby bestowing upon it the protection provided under the Copyright Act. 

Section 2(ffc) of the Copyright Act defines a computer programme as,

“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;

From the definition above it is quite clear that a computer programme needs to be expressed in order to obtain protection under the Copyright Act. Copyright infringement of Computer programmes can be both literal and non-literal. Literal Copying is when a substantial part of the work is copied as it is, and non-literal copying is where the structure sequence or organization of the code is copied[2]. However, under both of them, the protection is granted only to the expression of such code. It is pertinent to note that the protection of copyright is only bestowed upon the expression of the idea and not the idea itself. Therefore, this protection shall not extend to the functionality of the product. This is protected under the Patent Law.

Protection under the Patent Act, 1970

The Patent Act, 1970, under Section 2(l), defines a new invention as,

“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 the public domain or that it does not form part of the state of the art;”

Section 3(k) of the aforementioned act also states that a computer program per se is not patentable. This essentially means that for a computer programme to be eligible for a patent, it must fulfil certain criteria. According to the Revised Computer Related Guidelines[3], the following must be taken into account while examining the eligibility of a computer program for a patent,

Novelty

Under this, if the subject matter for which patent is being claimed has been disclosed before the date of filing, or before the date of priority, then in such cases patent cannot be granted

Inventive Step

Inventive step is defined in Section 2(1)(ja) as,

“inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;

Moreover, the guidelines further lay down the points that shall be taken into account while ascertaining whether the invention as a whole has an inventive step,

1. Identify the “person skilled in the art”, i.e competent craftsman or engineer as distinguished from a mere artisan;

2. Identify the relevant common general knowledge of that person at the priority date;

 3. Identify the inventive concept of the claim in question or if that cannot readily be done, construe it;

4. Identify what, if any, differences exist between the matter cited as forming part of the “state of the art” and the inventive concept of the claim or the claim as construed;

5. Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of inventive ingenuity?

Industrial Applicability

A patent can only be granted to the computer program if it such invention is capable of industrial application.

section 2(1)(ac) of the aforementioned act defines “capable of industrial application”, as follows,

“”capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;”

Thus, the computer program for which patent is requested must have some practical application and industrial use.

It is pertinent to note that a patent shall only be protected for 20 years from the date of filing of the patent which is much shorter than the protection granted to Copyright.

Conclusion

From the abovementioned information, it is quite obvious that the protection of a computer programme under Copyright and Patent laws have their own set of benefits and setbacks. The owner of the computer programme created shall have a copyright the moment such programme is created, whereas the Patent shall only be granted on application and examination of the same. However, it is pertinent to note that the criteria for the eligibility and examination of the patent are quite high.  Moreover, Copyright only protects the expression and not the idea itself, therefore the functional aspects of computer programmes can only be protected under the Patent Act. Furthermore, the protection granted for a patent is for a period of 20 years whereas under copyright the protection extends to 60 years after the death of the author. In certain cases, the computer programmes may be protected under both, subject to the fulfilment criteria of each of the abovementioned law. 

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[1] Copyright Protection of Computer Software, WIPO, https://www.wipo.int/copyright/en/activities/software.html

[2] Khushboo Tomar, Software Protection Under Copyright Law, MONDAQ, https://www.mondaq.com/india/copyright/802408/software-protection-under-copyright-law

[3] Guidelines for Examination of Computer Related Inventions (CRIs), Office of the Controller General of Patents, Designs and Trade marks http://www.ipindia.nic.in/writereaddata/Portal/IPOGuidelinesManuals/1_86_1_Revised__Guidelines_for_Examination_of_Computer-related_Inventions_CRI__.pdf