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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