Software in its simplest sense can be understood as a set of instructions provided to the computer in order to produce the desired result. In other words, when the programs, explanations, procedures, commands etc.
Software in its simplest sense can be understood as a set of instructions
provided to the computer in order to produce the desired result. In other words,
when the programs, explanations, procedures, commands etc. are so designed or
arranged that a particular task is performed it can be termed as a software.
Just like any other intellectual property, software is a product of the mind. It
involves a significant contribution of time, labour and skill. The most common
methods of software piracy are softlifting, hard disk loading, unauthorized
renting and hard disk loading. In addition, the ease of duplication and high
quality of pirated software poses a great threat to the software industry. When
a software is copied there is barely in noticeable difference in
quality.[1]This implies that the return on the huge investments made on
research and development to create a software cannot be enjoyed by the creator
of software. Thus, software protection by way of intellectual property rights is
necessary to ensure that the creator is adequately benefitted and to encourage
creativity and inventiveness in the future. Various international instruments
and the legislations in many countries extend intellectual property protection
to software as well.
International Instruments:
The provisions of the TRIPS Agreement are the most extensive and rigorous in nature.It explicitly includes computer software in its list of copyrighted
works. Article 10 of the TRIPS agreement states that member states should
protect software, whether in source or object code, as literary works under the
Berne Convention. However, the efficiency of protection offered by copyright is
adversely affected by the idea expression dichotomy. So, algorithms which are
mere ideas cannot be protected under the copyright law. Source codeand object
codeare the products of algorithms; they are the expressions of the ideas
contained in the algorithms and, therefore, they can be protected against
literal copying under copyright law.[2]Article 27 paragraph 1 of TRIPS extends
patent protection to any process in the field of technology which is capable of
industrial application. However, an air confusion persists as to whether
software can be brought under the ambit of “processes in the field of
technologyâ€. Article 31 talks about protection for undisclosed information and
offers a trade secret regime for software protection. Trade secret regime is
applicable for the protection of trade secrets which may include software[3]
Berne convention became effective from 5th December 1887 and thus forms the
basis of most international instruments for the protection of intellectual
property rights. Unlike TRIPS, Berne convention does not explicitly extend the
protection of copyright to software but what should also be kept in mind is that
Works enumerated in Article 2 of Berne Convention are not exhaustive. Article 2
(7) of the Berne Convention makes the protection of works of applied art
dependant on domestic legislation i.e. the extent to which protection may be
granted and the conditions under which such works will be protected is dependent
on the statute of the particular country where the work originated.[4]
The WIPO Copyright Treaty (WCT) is a special agreement under the Berne
Convention which deals with the protection of works and the rights of their
authors in the digital environment.[5] Article 4 of the Treaty expressly states
that, “Computer programs are protected as literary works within the meaning of
Article2 of the Berne Convention. Such protection applies to computer programs,
whatever may be the mode or form of their expressionâ€.[6] Article 6-8 equip the
author with the right of distribution, right of rental, right of communication
to the public.
International Trends
1. The United States of America:
The issue of copyright protection for software products in the United States has
its origins in the 1908 case of White-Smith Music v. Apollo Company[7]. In 1980
an amendment was made to the Copyright Act to include provisions for the
protection of Computer Software. The new amendment gave the owner of a copy of a
protected program two rights: the right to copy or adapt the program for use and
the right to make backup copies.[8] A copyright holder under the current law is
afforded five exclusive rights. Out f these rights certain some are particularly
relevant to the holder of a copyright for computer software: the distribution
right, the reproduction right, and the adaptation right.[9]
2. The United Kingdom of Great Britain and Northern Ireland:
For software to be protected under the laws of the U.K. a degree of creativity
is necessary. This standard requires that the idea begin with the author. The
Copyright Amendment Act of 1985 It specifically confirmed that a computer
program is a literary work.[10] The new Amendment also enhanced the criminal
remedies of the Copyright Act of 1956 for cases of computer program piracy. Acts
of software theft can result in unlimited fines and up to two years
imprisonment.
3. India:
In India software may be protected under the Copyright Act, 1957 or the Patents
Act, 1970. Even in India, a degree of creativity is necessary for the software
to be protected. It can be protected under the Patent Act only if it has a
technical effect. Otherwise it can be protected only under Copyright Act,1957.
Section 2 (o) of the Copyright Act defines 'literary work' and includes
computer programs, tables and compilations including computer databases. Thus,
it is explicitly protected. The same remedies will follow from the infringement
of the Copyrighted Computer software which are allowed in case of any other
improvements.
Conclusion:
India has undoubtedly made great strides in Protection of computer software
through copyright law but the protection through patent law still remains at a
nascent stage. As the strength of protection offered by patent law is much
higher than that offered by copyright law it would be in greater interest if
attempts are made in this direction.
End-Notes
[1] Robert W. Gomulkiewicz, Legal Protection for Software: Still a Work in
Progress, 8 Tex. Wesleyan L. Rev.
(2002)
[2] An Introduction To Intellectual Property Rights, Shyam Sunder Mahapatra,
Available at http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=5e0eacf3-3277-4406-8e92-db6ea209fd16&txtsearch=Subject:%20Intellectual%20Property%20Rights
[3] An Introduction To Intellectual Property Rights, Shyam Sunder Mahapatra,
Available at http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=5e0eacf3-3277-4406-8e92-db6ea209fd16&txtsearch=Subject:%20Intellectual%20Property%20Rights
[4] Software Protection: International instruments and trends:
MathanAntoMarshine P , Available at http://www.academia.edu/8316248/Software_Protection_International_Instruments_and_Trends
[5] http://www.wipo.int/treaties/en/ip/wct/
[6] http://www.wipo.int/treaties/en/text.jsp?file_id=295166#P58_5860
[7] 209 U.S. 1 (1907)
[8] 17 U.S.C. § 117 (1980)
[9]Nancy F. DuCharme and Robert F. Kemp, Copyright Protection for Computer
Software in Great Britain and the United States: A Comparative Analysis, Santa
Clara High Technology Law Journal, January 1987.
[10] Nancy F. DuCharme and Robert F. Kemp, Copyright Protection for Computer
Software in Great Britain and the United States: A Comparative Analysis, Santa
Clara High Technology Law Journal, January 1987
Copyright Law in India
Software
Copyright - Software Registration laws in India
Software Patentability: In Indian Context
Patentability
Copyright : Seductive mirage
Copyright Societies
Intellectual properties rights
Advertising
Copyright Wars
Copyright Amendment Bill 2010
Author's moral Right
Indian Copyright Software
Competition Law vis-a-vis IPR rights
Reprography Regulatory Mechanisms
Necessity of Publication in Copyright
Anton Piller in protecting the IPR
Originality Under Copyright Law-Is There Any Definite Standard?
online Copyright Infringement and ISP Liability
Registration and filing of Copyrights in India
The Rights protected by Copyright Law
Copyright Amendment Bill, 2010
Registration of shape of goods as Design
Universal Copyright Convention
Copyrighting a Documentary Film
Intellectual Property Rights, Statutory Licensing In India
The Effectiveness of the Remedies for Copyright Infringement
Protecting Tradition and Culture in India: Development of A Sui Generis
System
John Locke’s Labour Theory: A Justification of IPRs
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