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Software Protection: International Instruments And Trends

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:

1. Trips:

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 technology”. 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]

2. Berne Convention:

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]

3. WIPO Copyright Treaty:

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 expression”.[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