Protecting Software Innovation in India

Introduction

Software refers to a compilation of instructions, data, or programs designed to operate machinery and execute specific tasks. The realm of software serves as the driving force behind modern efficiency and innovation in various industries, relying on intricate instructions and programs to accomplish specific tasks. This vital sector, characterized by skilful craftsmanship and significant effort, demands protection against unauthorized use and replication in today’s digitally pervasive landscape. Protecting software innovations, which include inventions, creative works, and commercial symbols, is essential through the umbrella of Intellectual Property. Through mechanisms like patents, copyrights, and trademarks, the Intellectual Property Rights (IPR) framework ensures creator recognition and rewards while fostering an environment conducive to creativity and progress. Establishing a parallel between software, intellectual property, and intellectual property rights underscores the significance of safeguarding software innovations within the Indian landscape.

Intellectual Property Rights (IPR)

IPR protection is vital as it encourages innovation and creativity by ensuring that creators can benefit from their work. Article 27 of the Universal Declaration of Human Rights (UDHR) establishes the entitlement to enjoy the protection of moral and material interests arising from scientific, literary, or artistic creations. Initially acknowledged in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886), the significance of intellectual property was formally recognized. These treaties fall under the administration of the World Intellectual Property Organization (WIPO).

IPR Protection of Software in India

Legislations that do Software protection in India are:

• The Copyright Act of 1957 addresses copyright protection, safeguarding original literary, artistic, musical, dramatic works and computer programs. It is given for 60 years.
• The Patents Act of 1970 focuses on patents, granting exclusive rights to inventors for new inventions or processes. It is given for 20 years.

The Department of Industrial Policy & Promotion (DIPP), operating under the Ministry of Commerce, holds the mandate to coordinate and supervise the implementation and ongoing progress of Intellectual Property Rights (IPRs) in India. As a member of the World Trade Organization, India adheres to the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement. Furthermore, India is actively engaged as a participant in key WIPO-administered International Treaties and Conventions governing various aspects of intellectual property rights.

Types of IPR for Software Protection in India

• Copyright– According to Copyrights Act, 1957; Copyright grants the exclusive rights, to perform certain actions regarding a work or its substantial part. These actions include reproducing, distributing, publicly performing, adapting, translating, making derivative works, creating copies of films or sound recordings, and communicating the work to the public. This applies to literary, dramatic, musical, artistic works, computer programs, cinematograph films, and sound recordings.
• Patent– A patent confers an exclusive privilege for an invention, granting the owner the authority to control its use. In return, the patent owner discloses technical details in the published patent document. Certain categories are excluded from patentability, including inventions that threaten public order, morality, or the well-being of living organisms. This encompasses frivolous inventions, methods related to agriculture or horticulture, traditional knowledge, computer programs, atomic energy-related inventions, and discoveries of scientific principles, under Indian law.

Safeguarding of Software

In the current age, copyright law has broadened its scope, safeguarding not just literary, dramatic, musical, and artistic creations, but also encompassing sound recordings, films, broadcasts, cable programs, and the arrangement of publications. An important amendment in 1984 extended this protection to computer programs, categorizing them as a form of literary work. This addition was justified philosophically by considering computer programs as products of intellectual skill, akin to other literary works, necessitating time and expertise in their creation. Section 2(o) of the Copyright Act defines “literary work” and includes computer programs, tables, and compilations including computer databases. As per the definition, the computer program comes under copyright law. Therefore, transforming the copyrighting of software into a tangible possibility.

Copyright stands out as the most fitting form of intellectual property for software protection in India. It’s often favoured due to its relatively less stringent criteria for grants. Copyright protection is inherent, and automatically in place once the work is completed. Instantly upon creation, the creator gains the authority to regulate distribution, reproduction, and other rights associated with the work. Copyrighting of software safeguards the “original works of authorship,” specifically referring to the code itself.

While copyrighting of software is pivotal, it’s essential to acknowledge that certain software can also meet the criteria for patenting, albeit with specific requirements and conditions. Section 3(k) of the Indian Patents Act, 1970, explicitly excludes ‘computer programs per se’ from patentability. The addition of ‘per se’ in the statute was intended to allow patents for computer programs that incorporate certain elements or developments beyond the program itself, making them eligible as inventions. This legislative intent was highlighted in the Joint Parliamentary Committee’s views during the introduction of the Patents (Amendment) Act, 2002. Therefore, transforming the patenting of software into a tangible possibility.

In the case of Ferid Allani v. Union of India & Others, the issue of patentability of software/computer programs despite Section 3(k) was deliberated upon. The applicant’s patent request for “a method and device for accessing information sources and services on the web” was rejected by the Indian Patent Office citing Section 3(k). The matter reached the Intellectual Property Appellate Board (IPAB), which upheld the rejection. Subsequently, a writ petition was filed in the Delhi High Court. The Court clarified that the prohibition on patenting of software relates to “computer programs per se” and not all inventions utilizing computer programs. Recognizing the prevalence of computer programs in various modern products like ovens, automobiles, and refrigerators, the Court emphasized that deeming such inventions non-patentable would be regressive. The Court further emphasized that if an invention demonstrates a technical contribution, it remains patentable despite being based on a computer program. This ruling stands as a significant clarification regarding the interpretation of Section 3(k) in relation to patenting of software in India.

Through patent protection, not only is the specific expression of an idea safeguarded, but the entirety of the idea, its process, and functional aspects gain legal protection. Opting for patenting of software carries multiple economic advantages. A patent confers exclusive rights over the invention to the creator for a finite duration. This exclusivity not only incentivizes innovation but also encourages inventors to actively pursue novel software developments, driven by the monetary benefits associated with patenting. Moreover, the economic gains derived from the patenting of software can be reinvested into further research, fostering a cycle of ongoing innovation and advancement.

Which is better: Patent or Copyright?

Choosing between patent and copyright protection for software hinges on its innovative features. Patents secure the fundamental idea and functionalities, demanding a significant technical advancement, particularly when software is intertwined with hardware. Meanwhile, copyrights safeguard the specific code and its expression for an extended period, typically around 60 years. However, copyrights don’t shield the underlying idea or functionality but focus on preserving the code and its presentation.

Patents are suitable for groundbreaking processes, emphasizing the protection of the overall concept. This is especially applicable when software integrates inventive methodologies. Conversely, copyrights serve well when the software’s uniqueness primarily lies in its code or creative expression.

Moreover, when software combines with hardware elements, it often qualifies for patent protection, allowing for a more comprehensive safeguarding of both technological facets. Ultimately, the choice depends on whether the emphasis is on protecting the core idea and functionalities (suitable for patents) or preserving the specific code and its creative aspects (ideal for copyrights).

Conclusion

Software protection in India through intellectual property mechanisms stands as a pivotal pillar in fostering innovation and creativity in the country’s technological landscape. The nuanced choice between patenting of software and copyrighting of software safeguards the inventive essence or the creative expression, respectively. The significance of protecting software cannot be overstated; it incentivizes creators, encourages research and development, and fuels economic growth. Striking a balance between robust protection and accessibility is crucial, ensuring that software creators are empowered to thrive in a dynamic and competitive digital era. Ultimately, a well-defined and robust intellectual property protection framework for software in India is not just a legal necessity but a catalyst for continual technological advancement and innovation.

References

1. Mondaq,https://www.mondaq.com/india/patent/830332/ip-protection-of-software-in-india–patent-or-copyright, 25/11/23
2. IP Bulletin, https://ipbulletin.in/software-protection/, 25/11/23