In India, software has traditionally been protected under Copyright Act, 1957 as software programme. Computer software, also known as computer programme, has a market value and is subject to fierce competition due to a shorter life circle and the potential danger of blatantly being copied or developed by reserve engineering. Granting protection to software through appropriate intellectual property mechanism, therefore, becomes essential to secure enhanced rights of the creator over the software and encourage creativity, innovation and investment. Such a protection to computer programme can also be seen as a form of legal subsidization to a particular industry and technology.
Attempt to extend protection under patents was hindered in 2005 with an amendment in the Patents Act, 1970 which excluded a computer programme from the list of inventions which could not be patented. The expression used in section 3(k) of the Patents Act is “a mathematical method or a business method or a computer programme per se or algorithms.” The interpretation of “computer programme per se” has been a contentious issue and often understood that software inventions could be patented while mere computer programmes should not be patentable.
SOFTWARE PROTECTION UNDER COPYRIGHT
Section 2 (ffc) of the Copyright Act provides protection to “computer programme” 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. This protection extends only to the particular expression of an idea that was adopted and not the idea itself or the procedures, methods of operation or mathematical concepts. Copyright confers an exclusive right to reproduce the material, issue copies, perform, adapt and translate the work for a minimum period of the lifetime of the author plus sixty years (there are certain exceptions in the case of the rights of fair use for academic purposes, news reporting etc). It entitles the owner to prevent copying of the protected work, to prevent the distribution of copies and to prevent preparation of derivative works.
Computer software includes items like the programme manuals and papers, punched cards and magnetic tapes or discs required for the understanding or operation of computers, all of which are capable of copyright protection as they fall under the notion “literary work.” The expression “schemes or in any other form” indicates that the source code, which is a computer programme written in a programming language, and the object code, which is the version of a programme in which the source code language is converted or translated into the machine language of the computer with which it is to be used of a computer programme – are entitled to copyright protection. Both the TRIPS Agreement, 1995 and WIPO Copyright Treaty, 1996 provide that computer programmes, both in source and object code must be protected by copyright. Procedurally, the ease with which copyright can be obtained and the duration of protection it provides makes it a popular mode of protecting software.
EXTENT OF EXISTING PATENT PROTECTION IN INDIA
Patent is granted to any “new” and “useful” art or process or method or manner of manufacture or machines or appliances or other articles or substances produced by manufacture. It grants an absolute monopoly or the right to prevent others from marking, using, offering for sale without the consent of the patent holder for a period of 20 years from the date of the application. Right is granted to the one who applies first, regardless of who invents first. In the case of software, it is sometimes accompanied by hardware also and, in such a case, the protection extends to the level of the idea embodied by a software and injuncts ancillary uses of an invention as well.
In the Manual of Patent Practice and Procedure released by the Indian Patent Office (“Manual”) , technical applicability of the software claimed as a process or method claim, is required to be defined in relation with the particular hardware components. Thus, the “software per se” is differentiated from the software having its technical application in the industry.
Per the Manual, a claim directed to a technical process carried out under the control of a programme whether by means of hardware or software, cannot be regarded as relating to a computer programme as such.
For example, “a method for processing seismic data, comprising the steps of collecting the time varying seismic detector output signals for a plurality of seismic sensors placed in a cable.” Here the signals are collected from a definite recited structure and hence allowable. An invention consisting of hardware along with software or computer programme in order to perform the function of the hardware may be considered patentable, for example, embedded systems.
PROS AND CONS OF PATENTING AND COPYRIGHT OF THE SOFTWARE
ADVANTAGES OF COPYRIGHT PROTECTION
Copyright protection continues to have potentially important advantages over patent protection. Copyright protection is in general much easier, much less expensive and much less time-consuming to obtain, and copyright infringement is typically much less complicated and less expensive to prove relative to patent infringement.
Copyright protection can become essential where pirates or mainstream competitors make exact or substantially similar software copies. Copyright infringement liability for exact copying can almost always be established much more simply than patent infringement liability, resulting in much lower litigation costs and an increased likelihood of securing expedited injunctive relief and exclusion orders. And regardless of whether the copyist makes exact or substantially similar copies, the prospect of copyright-infringement liability gives the copyist more to worry about, since copyright-infringement charges and patent-infringement charges call different acts into question, involve different defenses to infringement and provide the software developer with different options for extracting monetary relief.
Most importantly, Copyright protection is created automatically when software is fixed in a tangible medium, so that many of the above advantages are available regardless of whether the copyright owner applies a copyright notice to its software or registers the software with the Copyright Office. Although it is better to give a notice and get it registered as it enhances the infringement remedies, which in turn can help deter infringement and encourage favourable settlement.
LIMITATIONS OF COPYRIGHT
There are certain limitations of copyright protection in India and several other countries working in similar legal sphere. For instance, the law as it stands today cannot prevent the creation of competing programmes that utilizes the same ideas as an existing programme. Further, there is no protection of the “ideas” underlying the computer programme, which often have considerable commercial value. The expression of a method of operation and principles of a computer programme cannot be protected by copyright.
Functional aspects of a computer programme are excluded from copying. It also fails to prevent the reverse engineering from independent inventions and has often been found more susceptible to piracy (cyber-piracy as well) and data theft. In order to prove copyright infringement, it is essential to establish that the defendant has in fact copied the work from the owner of the copyright. Interestingly, there is no infringement and the owner of a programme is entitled to make copies (including back-up copies) or adaptation of a computer programme, so long as the copy is utilized for the purpose for which it was supplied.
BENEFITS OF SOFTWARE PATENTING
Patents can provide valuable protection for software and have several advantages over copyrights. Some of the advantages which patent protection have over copyright are as follows:
Economically beneficial and protects investment
Some software applications can cost thousands of dollars to develop. Once created, other companies or developers can easily copy your software and market it as their own. With a software patent, no one can copy your software without a legal written agreement. If other developers copy your software, all the money you invested into the project becomes a waste. A software patent protects your investment .
And this can increase the valuation of small companies. Patent lawsuits are one of the only tools available to combat large players in the software marketplace (e.g. Microsoft) and allow innovative small companies to build a market of their own or at least receive fair compensation for their investment.
Public disclosure and secrecy issues
A patent must publicly disclose the invention and so educate the public and advance the state of the art of the invention. Thus patents accelerate software development by making previously unknown and not obvious software inventions public.
Furthermore, patents are only valid if the inventions they disclose were not known by the public prior to the filing of the patent application, or if the inventions were not obvious to those of ordinary skill in the art at the time the patent application was filed.
This in turn is helpful for the software developer as the inventor will not be concerned with secrecy problems that copyright holder faces.
You can apply for a software patent even during the design phase of your project. Source code is not required to receive the patent. Organizations should be able to protect their intellectual property. Moreover it has been said that Software patents provide more protection than a copyright. A copyright may only protect design or specific code segments. A software patent protects the software application as a whole, including all unique screens, code and developer trade secrets.
Granted patents can be revoked if found to be invalid. Development of new ideas is therefore not blocked by bad patents, and therefore the proposed negative effects of patents are moot. On the other hand it is useful for the holder as in a patent infringement claim patent holder has the advantage of not facing the defence of independent creation.
NOTE: Though in India, a clause to include software patents was quashed by the Indian Parliament in April 2005, several other countries all over the world like U.S., Japan, Canada and now South Korea advocate patentability of software as a better option.
European Union member states and UK have found a middle and interesting way, Computer-implemented inventions which only solve a business problem using a computer, rather than a technical problem, are considered un-patentable as lacking an inventive step whereas a computer program implementing an industrial process is taken as invention.
ARGUMENTS AGAINST THE PATENTIBILITY OF SOFTWARE
Lack of patent application disclosure and hindrance in development
Software patents hinder the development of software and free and open source software. The effect of patenting has led to keeping the software source code, which is the essence of practical technical knowledge in software, secret. The process of integrating functions of one piece of software into another, and vice-versa, which is the key to innovation in software is now facing impediment due to patenting of source code. As the patent applications are confidential, so a computer programmer will never be aware if he is violating any patent.
This makes the survival of small players difficult. When protection for the code or expression is available under the Act, there seems no reason to protect the ideas or functionality of that software as well. Understandably, patenting of software helps large software corporations that already have a large number of software patents and those corporations that do not create software, but only trade in patents/sue on the basis of patents.
Slow Patent examination
Even in countries like U.S. a typical software patent application takes one and half to four years to be approved . For 2005, the projected average pendency for patent applications in the “Computer Architecture, Software & Information Security” department of the U.S. Patent and Trademark Office was 3 and a half years. In Europe, the average time taken to grant a patent in any field of technology was almost 4 years in 2005, with the computer related fields probably being greater than the average.
The question thus lies that would be the situation in countries with lesser resources and many more number of applicants both because of population pressure and intelligent minds.
Computer software is a complex component which generally comprises of several million lines of code having the potential of thousands of inventions, any of which is capable of being patented. It depends upon a vast range of technologies which evolve rapidly and gets replaced in markets even before the previous becomes redundant, so such two or more inventions can simultaneously survive in the market.
This leads to grant of patent to trivial patents and patents are sometimes allowed on inventions that appear to be trivial extensions of existing technologies .
The basis of granting patent to software (to foster the growth and evolution of the industry) is defeated as even if software meets the technological criteria for patent protection, such protection would be useless because of the very short market life of software.
A great deal of debate surrounds the validity of the grant of twenty years protection versus lifetime plus sixty years for copyright. A valid view is that twenty years of monopoly rights is preposterous in an industry where the rate of turnover of technology is less than a year or so.
NOTE: A new idea is emerging. Through the study of patent protection all over the world and the views of the future IPR a concept of combining both the patent and copyright regime is coming up.
And one of the arguments is that ff software is both functional and expressive, then software is susceptible to protection by patent and copyright law both or some hybrid of the two .
Software industry has a very characteristic nature which makes it extremely vulnerable to being easily monopolized. Some of these are interoperability and compatibility problems, the low cost of massive reproduction of software, the difficulty of inspecting software distributed without the source code, and the rapid evolution of the market. Copyright supplements these characteristics whereas patents are restrictive.
However, in the present competitive economy, patent protection is viewed as a trade-off between the need to encourage innovation and the necessary evil of allowing a temporary monopoly to the innovator. It additionally helps in fighting the menace and commercial loss caused by piracy. Unlike copyright that protects only the final work, software patent protect the imitation of features, elementary ideas. Software patents, by allowing its holders to claim even elementary ideas, constitutes an extremely powerful monopoly-creating instrument as the holder of patent can prevent the selling of all software implementing the patented idea – whatever the application domains can be!
These all arguments and the study of trend all over the world give away the fact that software patenting is now coming in larger use and countries with higher technological advances are preferring the option of patenting, and thus the first postulate that the countries all over the globe are preferring copyright only stands negated.
However it would be wrong to say that copyright for software should be done away with entirely. The scenario above sketches a rosy picture but only for the giants in the field and well to do off countries. It is still a hindrance for development which is the spirit of the Intellectual Property and the object of protecting them and still for a wholesome effect the problems of open source and fair usage needs to be worked out.
Not only that; for the countries like India and other developing nations and the individuals and industries within patenting is a lengthy and costly affair. Moreover allowing patenting of software would give a fatal blow to advances of small and medium enterprises that do not have a large defensive patent portfolio. Thus there is still a long way for the patents to go and be called the best and the only existing mode of protection for software.
Thus the second postulate is correct as it reflects that out of the two options the one which suits the utility of a nation and the IPR holders must be ultimately used.