This blog is written by Harine S., A Third Year Law Student at Symbiosis Law School, Hyderabad
Intellectual Property rights are given to the owner as an assertion of legal rights over the product created. Web coding and software development have become very common these days. With every activity aided by technology, some form of software development is involved, thereby raising questions of intellectual property rights (IPR) and protection. Software development involves various levels of programming and customization, thereby raising problems of ownership. For example, If a company develops software for a company, the company will not be able to give away its IPR with respect to the basic algorithm that was used to develop the software. This situation creates problems with respect to the area of ownership and licensing.
Before getting into problems, it is important to note that certain terms such as “source code” and “object code” play a role in the laws concerned.[i] Source code refers to a computer program whereas object code is that code that has been converted from the source code for it to be run by the computer. The question that has to be answered first is whether computer software is intellectual property. This has been answered by the Supreme Court in “Tata Consultancy Services v. State of Andhra Pradesh”[ii]wherein the court held that computer software is intellectual property.
THE CONCEPT OF OWNERSHIP AND RELATED LAWS IN INDIA
When software is developed, one question that often comes up is “Who owns the code?”. The code is authored by one person, it is customized by one, and is executed by another. It is difficult to say that the code belongs to one particular person. This comes with the dilemma between the options of owning over licensing. While ownership of software grants complete rights over the software, a license grants only specific rights.
However, IP laws have a solution to this. Copyrights laws of all the countries support some form of protection for coding. The Indian Copyright Act defines a computer program as “means 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”[iii]. The copyright laws in India require the filing of an application along with the object code and source code.[iv] The submission of the complete source code or object code is not mandated; however, as a practice, the complete source and object code is required. The Copyright Act also provides for the extent to which the ambit of legal protection is extended. According to the Act, the protection will be given only for a case when the code is physically copied. The Act does not prevent any person from working on the idea that was used to develop the code as the Copyright Act clearly distinguishes between a form and an idea.[v] However, this can be protected through patent law in some cases. What the patent law looks out for is a ‘novel’ idea. However, the law also clearly states that a computer program is not per se patentable.[vi] The Patents office, through the “Guidelines for Examination of Computer Related Inventions”, has clarified that a computer program which is used as a background tool to boost the efficiency of hardware can be considered to be patentable. Patent laws do not support the patenting of computer software because the ambit of protection under the patent law is wider than the copyright laws[vii] and this would limit innovation in a country like India. This is in line with the patent laws in the United Kingdom which also do not support patenting computer software though certain relaxations are provided in certain cases.
The concept of trade dress, though not commonly related to computer software or web coding, can play a crucial role in protecting rights. The concept of trade dress is more to do with the protection of the website as a whole than protecting the coding behind it. In India, the Delhi High Court in “Colgate Palmolive Co. v Anchor Health and Beauty Care Pvt. Ltd”[viii] recognized the concept of trade dress. Websites are generally protected as trade dress and this would include the database of such websites such as information about the product or ingredients, or any such information on the website.
PROBLEMS
The Software industry and web coding have become an integral part of the world’s economy. After the Information Technology boom in the 1990s’ in India, the demand for program as never gone down. The number of IT firms in India and the projects that they work on are ever-increasing. All of this involves some form of creativity and innovation and is reflected through the basic coding that forms a part of all of them. The Indian laws, with respect to protecting web coding, are highly limited to copyrights. The difference between copyright law and other laws is that the copyright laws protect the code only from being completely copied and does not protect other areas. Software and web coding are not considered on equal footing with other innovations. In India, software piracy is a real problem; however, the importance given to keeping it in control is very less. Numerous States have passed laws with respect to protecting movies or songs from being pirated but none of them have considered software as an innovation that is capable of being pirated.[ix] Tech giants face a huge problem with their software and have to continuously keep a check on duplications of their software. “Microsoft Corporation & Ors. vs Satveer Gaur & Anr.”[x] is a recent judgement on software piracy wherein Microsoft’s software was “illegally appropriated, reproduced and sold”. Despite the existence of copyright laws, the software is very widely pirated in India and sold at lower prices. It is not easy to identify pirated software because it is almost similar to the original one. The quantitative loss caused by software in piracy in India is $2.76 billion in the year 2019.[xi]
CONCLUSION
The software industry in India and the world is ever-expanding. With the given dependence on technology, there is a need to create new systems that would require simple to complex coding. Computer coding, like other innovations, is also novel and time-consuming and require legal protection. In India, copyright laws are the only strongest legal protection that is provided to a web code. Apart from that, the trademark law, to a certain extent protects the software and websites. Patent laws do not support every type of web coding in order to encourage innovation. Laws, in general, only deal with ownership and miss out on the licensing aspect of coding. The legislature needs to take note of this as the software industry will be ever-booming.
[i]ALOK KUMAR YADAV, COPYRIGHT IN DIGITAL ERA (Scholar’s Press, 2014) http://www.rmlnlu.ac.in/webj/alok_kumar_yadav.pdf [ii]Tata Consultancy Services v. State of Andhra Pradesh, 271 ITR 401 (2004) [iii]Section 2 (ffc) of The Copyright Act, 1957. [iv] India: IP Protection of Software in India- Patent or COPYRIGHT? IP Protection Of Software In India - Patent Or Copyright? - Intellectual Property - India (last visited Dec.16, 2020). [v] Promod Nair, Copyright Protection for Computer Software, 7 The Practical Lawyer 31, 32. [vi]Section 3(k), The Patents Act 1970. [vii]Indian Law on Software Patentability https://www.lexology.com/library/detail.aspx?g=33f758e5-8ad4-4741-94f0-18172267449b (last visited Dec.17, 2020) [viii]Colgate Palmolive Co v Anchor Health and Beauty Care Pvt. Ltd, 108 (2003) DLT 51. [ix]Vipin Agarwal, Software needs a stronger IPR regime, Business Line (Sep. 19,2020) https://www.thehindubusinessline.com/opinion/columns/software-needs-a-stronger-ipr-regime/article7177470.ece [x] Microsoft Corporation & Ors. vs Satveer Gaur & Anr., CS(COMM) 1324/2016. [xi] PTI, Software Piracy in India down by a notch; losses up at $2.76 bn, The Economic Times (Sep.19, 2020), https://economictimes.indiatimes.com/tech/software/software-piracy-in-india-down-by-a-notchlosses-up-at-2-7-bn/articleshow/4521510.cms?from=mdr
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