Software Protection : International Instruments and

Trends | 1

SOFTWARE PROTECTION: INTERNATIONAL INSTRUMENTS AND TRENDS

 SUBMITTED TO: MISS. EKTA YADAV

 SUBMITTED BY : SOHAIL AHMED SHEIKH
 REGISTRATION NO. : 11616290
 ROLL NO. : 02
 B.A.L.L.B 5TH YR.
 Software Protection : International Instruments and
Trends | 2

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Miss.Ekta Yadav who gave me the
golden opportunity to do this wonderful project on the topic software protection : international instruments
and trends, which also helped me in doing a lot of Research and i came to know about so many new things.
CONTENTS

1. Introduction 5
International Instruments 5
TRIPS 6
Berne Convention 7
Universal Copyright Convention (“UCC”) 7
WIPO Copyright Treaty 8
European Community Directive on the Legal Protection of Computer Programs 9
ENFORCEMENT OF PROTECTION 10
INDIAN LAW 10
ACTS NOT AMOUNTING TO INFRINGEMENT 11

2. Conceptual DISCUSSION (BASIC CONCEPTS TO BE DISCUSSED) 12

SOFTWARE PATENT LAW IN INDIA 13

3. STATE AND EXPLAIN THE IMPLEMENTATION OF THE EXISTING SYSTEM 16

COPYRIGHT INFRINGEMENT 16
INTERNET AND COPYRIGHT INFRINGEMENT THEORIES 17
ON-LINE COPYRIGHT ISSUES IN INDIA 18

4. ALTERNATIVE SYSTEMS PREVAILING IN OTHER COUNTRIES, IF ANY 20

SOFTWARE COPYRIGHT PROTECTION AND OPEN SOURCE LICENSING 21
Additional protection measures for software 23

5. Data Analysis and Interpretation 23

Interpretation based on the analysis 24

6. Conclusion 25
Expected future of Software Protection 26

7.Bibliography 27
1. INTRODUCTION

Software is a product of human intellect and can be rightly termed as “Intellectual property.”
Considering the very vital role it plays in today’s world economy and development, protection of
software is a very crucial issue. There has been a demand worldwide for the protection of software. The
Trade Related aspects of Intellectual Property (“TRIPS”), Berne Convention, and World Intellectual
Property Organization (“WIPO”) have included provisions for the protection of software. Copyright laws
throughout the world have extended protection for software.

This report article introduces and analyses the international instruments for protection of software and their
application and adoption in India.

International Instruments

Software is marketed either through traditional channels (retailers, e-tailers etc) or distributed from a
website with a “click-wrap” license agreement. Such an arrangement leaves a lot of room for unlawful
copying of software. Statutory protection of software has, therefore, become increasingly important.
Most of the countries have modified their copyright laws to include software within its ambit.

Under copyright laws, protection is available only to the form or expression of an idea and not to the idea
itself. The object of copyright protection in a computer program is not the underlying idea, but the
computer language used to express that idea. The coding of the program is carried out independently. In
that case, the idea underlying the program is expressed in a way that differs from the way in which the
originator of the program has expressed this idea. The new code thus constitutes the expression (of the
underlying idea) and is protected but the methods and algorithms within a program are not protected.
Algorithm is a list of well-defined instructions for completing a task. It is a set of instructions on what
steps are essential to process information by the computer and in what specific order it has to perform
these operations in order to carry out a specified task. Thus, algorithms are mere ideas which cannot be
protected under the copyright law. Source code and object code are 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 .

“Look and feel” of a computer program given by a programmer or an interface designer also can be
termed as the expression of ideas of the programmer and the interface designer. Though this is a non-
literal expression, it has been afforded protection under the U.S. copyright law. These and various other issues
concerning software protection have been dealt with in the international instruments.

Following is an account of the various international instruments for software protection.

TRIPS

This is the first international Treaty to explicitly include computer programs within the illustrative list of
copyrighted works. TRIPS sets forth three different forms of protection for software: copyright, patent and
trade secret regime. TRIPS includes a specific provision in Article 10 that expressly requires member states to
protect software, whether in source or object code, as literary works under the Berne Convention. However, the
member countries have a right to provide more extensive protection of intellectual property rights within their
national legal systems.

Article 27.1 recognizes patent protection for software related invention for the member states so long as the
invention satisfies the other requirements for patentability which are country specific. Therefore, software may
be granted patent protection in a particular country if it fulfills the specific conditions set forth under the
laws of that country.
Article 39 of TRIPS provides an alternative to copyright protection. It 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. A particular software may
contain lot of valuable and confidential information about a company which forms its trade secret. Civil
and criminal actions are provided for in most legislation against the unauthorized disclosure or use of
confidential information. In this case, there is no exclusive right, but an indirect type of protection based
on a factual characteristic of the information (its secret nature) and its business value. Unlike patents, trade
secrets are protected as long as the information is kept secret.

Thus, TRIPS does not preclude additional forms of protection for computer programs and a member can
offer patent, copyright and trade secret protection for computer programs. Keeping in mind the higher
standards of creativity required by patent law the software developer can choose any form of protection
which is most desirable to him. As the source code is comprehensible only by a trained programmer and
not by normal persons, the proprietors generally protect the source code under the trade secret regime and
the object code is protected as a copyright.

Reverse engineering is one practice which is very common to software. There has been a debate as to
whether reverse engineering amounts to infringement. TRIPS allows reverse engineering of computer
programs only by honest avenues. Wholesale copying of computer programs is prohibited under TRIPS.
Copying with modifications here and there is permitted and copying amounting to fair use is also
permitted under the copyright laws of many countries. Consequently, the practice of re-
implementing functional components of a protected program in “clones” is not prohibited. It is pertinent to
mention here that programs that are independently coded and deliver the same functional performance or
behavior as the originator’s own software are not said to infringe the latter’s rights in his software as this
will amount to fair use. This encourages competition and innovation by firms in all countries.

Berne Convention Universal Copyright Convention (“UCC”)

The Berne Convention does not explicitly mention Under the UCC’s national treatment provisions,
computer programs in its illustrative list of copyright software created by a U.S. author or first published
works. However, as per TRIPS, member states should in the US is protected in other UCC member
recognize computer programs (software) as literary countries to the extent that the member country’s
works. copyright laws protect software. The UCC provides
that any member country that requires, as a
Article 2 (7) of the Berne Convention makes the condition of copyright protection, compliance with
protection of works of applied art dependant on formalities (such as registration, deposit or notice)
domestic legislation i.e. the extent to which must treat such formalities as satisfied if all
protection may be granted and the conditions under published copies of a work bear the symbol “©”,
which such works will be protected is dependent on the name of the copyright proprietor and the year
the statute of the particular country where the work of first publication. This provision applies,
originated. Works enumerated in Article 2 of the however, only to works that
Berne Convention are mere illustrations of the kinds
of works to which copyright might extend. These (i) were first published outside the country
illustrations are not exhaustive. Therefore, works such requiring the observance of the formalities, and
as computer programs that exhibit utilitarian (ii) were not authored by one of that country’s
characteristics and also contain expressive elements can nationals. In contrast to Berne Convention,
be brought under the ambit of work of applied art. formalities such as registration are permitted
However, Article 7 (4) of the Berne Convention under the UCC in order to bring an infringement
exempts, inter alia, the works of applied art from the suit.
general term of protection and sets up a minimum
term of only 25 years from the making of the work. India being a member to the UCC, authors of
As article 2 (7) makes the protection of works of software in US will get protection in India also as
applied art dependant on domestic legislations, the per the terms and conditions laid down in the
term of protection may be applicable accordingly Indian Copyright law.
with respect to different
countries.

WIPO Copyright Treaty

In 1996, two copyright treaties were negotiated under the auspices of WIPO. These treaties are: WIPO Copyright
Treaty (“WCT”) and the WIPO Performances and Phonograms Treaty (“WPPT”). The WCT of 1996 is a special
agreement to the Berne Convention and requires compliance with Berne Convention.
This treaty makes explicit that computer programs are protected as literary works under Berne
Convention. It also states that compilations of data for which the selection or arrangement of the
contents are sufficiently original are protected as compilations. Software makers are granted a right to
control rentals of computer programs. It requires treaty nations to provide adequate and effective
protection against the circumvention of technical measures that restrict the ability of others to exercise
the rights owned by the copyright owner. Among the countries where subject matter protection exists for
software, there are substantial differences in the laws and regulations governing protection. For example,
the author of a “U.S. origin” work who desires to file suit for copyright infringement in the US must
first register the work with the U.S. Copyright Office. This is not the case with most other countries.
In some countries, registration provides certain evidentiary benefits. In Japan, for example, the legal
effect of one type of optional registration is to create a rebuttable presumption that the program was
created on the date declared in the application, but a program must be registered within six months of its
creation. In Venezuela, unless a U.S. author has already registered its software in the U.S. Copyright
Office, when the author seeks to register its copyright in Venezuela (which one might do to prove
originality for purposes of possible litigation in Venezuela), the author must also file assignments from
each person who worked on the software.

European Community Directive on the Legal Protection of Computer Programs

In 1991, Article 1.1 of the ESD required member countries to extend copyright protection to computer
programs. In the midst of many restrictions imposed on the use of software by another except the owner, ESD
has introduced relaxation in these restrictions concerning mainly reverse engineering.
Article 6 of the ESD conditions reverse engineering for compatibility purposes on the fact that the
information necessary to accomplish compatibility must not have been previously readily available and it
should be confined to the aspects of the program related to the need for compatibility. There is no
specific exception for research, and the limited scope of reverse engineering permitted by the terms of
the ESD is not to be construed in a manner that would unreasonably interfere with the owner’s normal
exploitation of the computer program. Reverse engineering for purposes of creating competing products
is thus prohibited under the ESD.
Enforcement of Protection

Although the availability of legal protection for software has increased rapidly around the world over the
years, the scope and the feasibility of enforcement of that protection continue to vary significantly in
different countries. The use of the Special 301 provisions of the 1988 U.S. Trade Act has resulted in greater
protection for software in several countries. These give more emphasis on proscription of piracy rather than
providing injunctive measures against infringement. The Business Software Alliance and the Software &
Information Industry Association have been effective forces for monitoring software piracy around the world,
promoting various changes in legislation and taking legal actions to enforce copyright protection. The accession
of the US to the Berne Convention, which fosters the protection of intellectual property rights through the
TRIPS Agreement, were important milestones in the use of multilateral agreements for dealing with protection
for software. These multilateral efforts are intended to promote adequate and effective protection of
intellectual property rights while ensuring that national laws enforcing such rights do not themselves become
barriers to trade. In most countries, the only meaningful remedy is to seek an order to stop or enjoin further
infringing activities, with only limited prospects for collecting damages. Reverse engineering is virtual copying
of software. US law and law of European Union deal with this concept differently depending on the provisions
of the international instruments discussed above.

Indian Law

In India, computer software does not form the subject matter of patents as the requirement of the patent law is
that the process must result in something “tangible” and “vendible.” Though not many in India demand
software protection, it is a much needed protection considering the growth of the Information Technology
industry in the country. India has adopted most of the particulars of the international instruments discussed
above and has incorporated its own law on software protection based on the essentials of these instruments.
National Association of Software and Service Companies (“NASSCOM”) is an ardent supporter of strong
intellectual property laws in India. In 1990, NASSCOM began an active public awareness campaign to educate
users about the lawful use of software. It has also been actively working towards providing various antipiracy
measures; it has also successfully facilitated enforcement laws against software piracy in India and has
continuously engaged with the
government of India for required changes in the IPR laws, keeping in line with WIPO and other
international laws and treaties. It works closely with BSA to enforce copyright laws.

The major statutes that cover software protection in India are the Copyrights Act, 1957 (“Act”) and Patents
Act, 1970(both the acts were discussed in detail at basic concepts section).

Acts not Amounting to Infringement

In compliance with the provisions of the TRIPS, the Act (15) has clarified that the following acts do not
constitute infringement of copyright in software:

(a) Making copies or adaptation of a computer program by a lawful possessor of a copy of such computer
program from such copy in order to utilize the program for the purpose for which it was supplied or to make
back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilize
the computer program for the purpose for which it was supplied.

(b) Doing any act necessary to obtain information essential for operating inter-operability of an independently
created computer program with other programs by a lawful possessor of a computer program provided that
such information is not otherwise readily available.

(c) Observation, study or test of functioning of the computer program in order to determine the ideas and
principles which underline any elements of the program while performing such acts necessary for which
the computer program was supplied.

(d) Making copies or adaptation of the computer program from a personally legally obtained copy for non-
commercial personal use.
 2. Conceptual Discussion (Basic concepts to be discussed)

IPR for IT Based Technologies

Information Technology (IT) covers set of hardware, software and associated services, which attract
Intellectual Property Rights (IPR) in a general sense subject to novelty, non-obviousness and utility
aspects. Some common IT products and services that are protected for IP are hardware, software,
databases, internet, electronic publishing, web processes like e-commerce, domain names, trademarks and
cyber contracts. Application of IP in each of these, with special reference to India and its cyber law, is
discussed briefly.

Patents V/s Copyright

Parameters Copyright Patent

Original works of authorship fixed in a tangible
medium of expression (e.g. software on hard drive Inventions; must be useful, novel, and non-
Subject
or CD) obvious
matter
File and prosecute application with the
United States Patent and Trademark Office
Fixation in tangible medium of expression and/or foreign patent offices
Establishment

Duration Generally, life of author plus 70 years Generally, 20 years from filing of application
Making, using, selling without permission; or
Unauthorized use, copying, distribution or aiding and abetting others engaged in such
Infringing
modification activities
activities

Patents in IT Non patentable

Practical application of computer related innovation is
Software are intangibles and not protected by
patentable. Though software are not patentable, specific
patents but are protected by copyrights as
software products that have a useful practical application
applicable to literary and aesthetic works. A
are patentable, like software used in devices like
pacemakers. Utilities of invention must be within the computer program is therefore dealt with a literary
technological arts. A computer program is eligible for work and the law and practice in relation to literary
patenting if it makes technical contribution to the known works will apply to computer programs.
art. If a program can make a system work more fast or
Software include programs, musical and artistic
efficiently, then it is eligible for patenting. Only a claim
works, studio and video recordings, databases and
having a practical application in the technological arts is
preparation material associated documents like
statutory and hence patentable.
manuals. Programming languages such Fortran, Basic,
Some typical software patents are:
Cobol are treated as languages like English, Hindi and
 Ideas, systems, methods, algorithms and
are not patentable but protected under copyright. Few
functions in software products
countries are contemplating patent type protection even
 Editing functions, user-interface features,
in the case of computer software copyright, which
compiling techniques
also allows a larger period of protection than the
 OS functions
patent law allows.
 Program algorithms
Mathematical algorithm or computer programs are not
 Menu arrangements
held as inventions because they merely describe an
 Display presentations/arrangements
abstract idea. They merely solve a mathematical
 Program language translations
problem and not a practical application or idea. They
 US recognizes methods of doing business
are considered mental acts as any professional could
patentable now and this brought a range of
do with requisite skills.
process like e-commerce, e-gambling and online
stock trading as patentable.

Software Patent law in India

The Indian Patent Law does not contain any specific provision regarding the protection of computer
software. There are no guidelines or office procedures followed by the Indian patent office regarding
computer software .
 Although, computer programs are not patentable per se, however a claim to a manner of manufacture,
which results in a tangible product, which requires the application of an algorithm or
a particular computer program, may be patentable. India has recently prepared itself for providing patent
registrations on software.

Copyrights Software copyright law in India

Copyright violations can occur in The Indian government has been an active participant in protecting the rights of
literal and non-literal sense. In Copyright holder. Both Department of electronics and Ministry of Human
literal sense one copies the actual resource Development have actively helped in bringing amendments to the Indian
work or text or source code. Non- Copyright Act. Indian copyright act of 1957 is amended to extend its coverage to
literal copying pertains to computer software also. Computer programs received statutory recognition as a
elements such as structure, `literary work' in 1984 and the definition has been amended and made more
sequences, functions, interfaces, specific and precise in the Copyright Amendment Act of 1994. India was one of
methodologies etc. Both literal the first countries in the world to provide statutory protection to computer
and non-literal expressions are software and is one of the toughest in the world.
protected – either in parts as Copyright, in relation to a computer program means the exclusive right to do
whole work. or authorize to do any of the following acts:
(1) To reproduce the work in any material form including the storing of it in
An example of this is Lotus123 any medium by electronic means
V/s VP-Planner (Asit Narayan and (2) To issue copies of the work to the public not being copies already in
Thakur, 2000). The VP- Planner circulation
copied overall structure, screen (3) To perform the work in public, or communicate it to the public
display and user interfaces as in (4) To make any cinematographic film or sound recording in respect of the
Lotus123, but developed the work
software using different code. This (5) To make any translation of the work
may not be a copyright violation (6) To make any adaptation of the work
as (7) To do, in relation to a translation or an adaptation of the work any of
methods of operation are not
protectable but the two line
moving cursor of LOTUS is
protected and hence VP-
Planner is treated as the
copyright violation.
the acts specified in
relation to the work in the above
(8) To sell or give on commercial rental or offer for sale or for commercial
rental any copy of the computer program. However, commercial renting
does not apply to computer programs where the program itself is not the
essential object of the rental.

Making import, sale, hire of

devices specifically designed to According to Section 14 of the Copyright Act, it is illegal to make or distribute

circumvent copy protection of a copies of copyrighted software without proper or specific authorization. The only

work in electronic form are exception is provided by the act, which allows a back up copy purely as a

treated as copyright temporary protection against loss, distribution or damage to the original copy.

infringement. Furthermore,
publishing information to enable The act prohibits the sale or to give on hire, or offer for sale or hire, any copy

circumvent copy protection is of the computer program without specific authorization of the Copyright

similarly treated. For example, holder. In this regard software copyright is different from copyright of literary

purchasing a CD recorder is work as they can be resold. Software is licensed to use in a particular machine.

legal but copying software Indian law prohibits unauthorized duplication of software for use by different

without authorization is an users or machines within an organization.

illegal use. Recording a TV

production and using it later The copyright infringer may be tried under both civil and criminal law. The Act

also infringes copyright law. provides for jail term of 7 days to three years and fines ranging between Rs 50,000

However, if not done to Rs.2,00,000 and or both (Nasscom, 2003).

purposefully it cannot be a
violation, but the accused has to As per Indian law, it is not necessary to register with the Copyright Office to
prove innocence. get copyright protection. As per the Berne Convention for protection of
literary and artistic works- to which India is a signatory- copyright of any
work in the member countries is protected in all the signatory countries.
 Copyright Infringement

DIRECT INFRINGEMENT CONTRIBUTORY VICARIOUS

INFRINGEMENT INFRINGEMENT

Direct infringement is a strict The contributory infringement pre- Vicarious copyright infringement
liability offence and guilty supposes the existence of knowledge liability evolved from the principle
intention is not essential to fix and participation by the alleged of respondent superior.
criminal liability. contributory infringer.

The requirements to establish a
case of copyright infringement
under this theory are:
(1) Ownership of a valid
copyright
(2) Copying or infringement of
the copyrighted work by the
defendant
To claim damages for infringement of
the copyright, the plaintiff has to
prove:
(1) That the defendant knew or
should have known of the
infringing activity
(2) That the defendant induced,
caused, or materially contributed to
another person’s infringing
activity.
To succeed on a claim of vicarious
liability for a direct infringer’s
action, a plaintiff must show that
the defendant:
(1) Had the right and ability
to control the direct infringer’s
actions
(2) Derived a direct financial
benefit from the infringing
activity.

(1) INTERNET SERVICE PROVIDERS (ISPS)

An ISP most often provides Internet access and he may be held liable for copyright infringement. In
Religious Technology Center v Netcom On-Line Communication Services, Inc a former minister uploaded
some of the copyrighted work of the Church of Scientology to the Internet. He first transferred the
information to a BBS computer, where it was temporarily stored before being copied onto Netcom’s
computer and other Usenet computers. Once the information was on Netcom’s computer, it was available
to Netcom’s subscribers and Usenet neighbors for downloading for up to eleven days. The plaintiffs
 informed Netcom about the infringing activity; nonetheless, Netcom refused to deny the subscriber’s access
because it was not possible to prescreen the subscriber’s uploads, and
kicking the subscriber off the Internet meant kicking off the rest of the BBS operator’s subscribers. Thus,
plaintiffs sought a remedy against Netcom for infringement under all three theories –direct, contributory,
and vicarious.

The court first analyzed whether Netcom directly infringed plaintiff’s copyright. Since Netcom did not
violate plaintiff’s exclusive copying, distribution, or display rights, Netcom was held not liable for direct
infringement. The court then analyzed the third party liability theories of contributory and vicarious
infringement. The court held that Netcom would be liable for contributory infringement if plaintiffs
proved that Netcom had knowledge of the infringing activity. The court then analyzed whether Netcom
was vicariously liable. Here, once again the court found that a genuine issue of material fact supporting
Netcom’s right and ability to control the uploader’s acts existed. The court found that Netcom did not
receive direct financial benefit from the infringement. Thus, the court found that the Netcom was not
liable for direct infringement, could be liable for contributory infringement if plaintiffs proved the
knowledge element, and was not liable for vicarious infringement.
.
(2) COMMERCIAL WEB SITES
The Web Page owners must be cautious of the things they post on their Web Pages so that they do not
violate the stringent provisions of the copyright laws. A Web Page owner cannot successfully plead and prove
that they were unaware about the copyrighted material because copyright notices are prominently given in
authorized software. They also have the controlling power over the content of their pages. The owner are
usually the parties that actually perform the uploads to their pages.

(B) PRIVATE USERS

A computer user who uploads copyrighted material to the Internet is liable for direct infringement. This
liability could be avoided only if he can prove the fair use doctrine. Thus, an Internet user should not post
copyrighted material on the Internet in a casual manner.
 On-line copyright issues in India
The reference to on-line copyright issues can be found in the following two major enactments:
(1) The Copyright Act, 1957
(2) The Information Technology Act, 2000
Copyright Act, 1957 and on-line copyright issues
(a) The inclusive definition of computer is very wide which
includes any electronic or similar device having information
processing capabilities. Thus, a device storing or containing a
copyrighted material cannot be manipulated in such a manner as to
violate the rights of a copyright holder.
(b) The term computer Programme has been defined to mean 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.
It must be noted that SecTION13(a) read with Section 2(O) confers a
copyright in computer Programme and its infringement will attract
the stringent penal and civil
Information Technology Act, 2000
and on-line copyright issues
(a) Section 1(2) read with Section 75 of the Act
provides for extra-territorial application of the
provisions of the Act. Thus, if a person
(including a foreign national) violates the
copyright of a person by means of computer,
computer system or computer network located
in India, he would be liable under the
provisions of the Act.
(b) If any person without permission of the
owner or any other person who is in charge of
a computer, computer system or computer
network accesses or secures access to such
computer, computer system or computer
network or downloads, copies or extracts any
data, computer data base or
information from such computer, computer
sanctions. system or computer network including
information or data held or stored in any
removable storage medium, he shall be
liable to pay damages by way of
compensation not exceeding one crore
rupees to the person so affected.

(c) The inclusive definition of literary work includes computer (c) While adjudging the quantum of
programmes, tables and compilations including computer compensation, the adjudicating officer shall
databases. Thus, the legislature has taken adequate care and have to consider the following factors:
provided sufficient protection for computer related
(i) The amount of gain or unfair advantage,
copyrights.
wherever quantifiable, made as the result of the
default

(ii)The amount of loss caused to any person as

a result of the default

(iii) The repetitive nature of the default

Thus, if the copyright is violated

intentionally and for earning profit, the
quantum of damages will be more as
compared to innocent infringement.

(d) The copyrighted material can be transferred or communicated (d) A network service provider (ISP) will not
to the public easily and secretly through electronic means. To take be liable under this Act, rules or regulations
care of such a situation, the Copyright Act has provided the made there under for any third party
circumstances which amount to communication to the public. Thus, information or data made available by him if
making any work available he proves that the offence or contravention
for being seen or heard or otherwise enjoyed by the public was committed without his knowledge or
3. Alternative systems prevailing in other countries, if any
Copy right measures to protect software in Srilanka

An important aspect of legal reform which has been successfully implemented in SriLanka is the
Intellectual Property measures to ensure adequate and meaningful protection for Computer Software. Over
the years, Copyright as a means of protecting Software under the Intellectual Property regime became
accepted firstly through judicial dicta and then through statute law and International legal covenants.
However, recent trends have demonstrated that relying on Copyright alone would not provide adequate
protection for Computer Software in view of the inherent features governing the law of copyright.

Therefore, reliance on additional safeguards has become a necessity. Intellectual Property Rights in Information
Technology based products have grown rapidly in importance even in Sri Lanka. Although the Code of
Intellectual Property Act of 1979 (based on the WIPO model) did not expressly contain provisions to protect
Computer Software, Section 7 of the 1979 Code protected original literary, artistic and scientific works.

Copyright software protection under the code of intellectual property act no. 36 of 2003

Under Section 6(1)(B) of the new IP Act, Computer Programs are protected under the Copyright regime within
the scope of literary, scientific and artistic works (as in the Amendment of 2000). Similarly, the words
“Computer” and “Computer Program” have been defined in accordance with the WIPO Model Provisions for
the protection of Computer Software complying with Article 10(1) of TRIPS. What is required under Section 6
to protect Software is to satisfy the test of originality. Most Software programs would meet the requirement
of originality, even if the program comprises little more than an
arrangement of commonly used sub-routines, because even the selection and arrangement of such sub- routines
require a reasonable amount of skill and expertise (sometimes referred to as the test of “skill,
labour and judgement”). In terms of Section 9 of the IP Code 2003 the owner of a Copyright protected work
“shall have the exclusive right to carry out or to authorize (a) the reproduction of the work (b) to translate the
work (c) Carryout adaptations to the work etc. From a Software perspective this would mean that acts, such as
the conversion of Software Source Code to Object Code format and even reverse engineering of Software
would have to be exclusively carried out by the lawful owner.
A new feature in relation to Software protection under the IP Code of 2003 is the inclusion of a
provision governing “fair use” in relation to Software. The concept of “fair-use” is an exception to the
general rules governing Copyright protection. Section 12(7) of the IP Code provides that a reproduction in a
single copy or the adaptation of the Computer program by the lawful owner of a copy of that Program (eg:- by
the Licensee), shall be permitted without authorization of the owner of the Copyright if the copy or
adaptation is required (a) for the purposes and the extent for which it was originally obtained, and (b) for
archival or replacement of the lawfully owned copy of the Computer Program in the event the said copy is
lost, destroyed or rendered unusable.

Software copyright protection and open source licensing

Open Source Software which is increasingly becoming popular even amongst individual users is being made
available under a variety of licensing approaches. They all have a common feature, i.e. rely on Copyright
to form the licensing contract. There are two principle open source licensing approaches – the GNU General
Public License (GPL) and the Berkeley Software Distribution (BSD) License. Under the

GPL, all derivative works must be licensed on the same terms as the original Software and source code subject
to GPL cannot be disassociated with that license. Under BSD, developers are allowed to
integrate the licensed software with developers’ own source code to create new products with few
restrictions. Therefore, programs containing BSD code do not have to be re-distributed under the BSD license
terms and instead could be subject to separate license terms.

The basis on which Open Source License categories impose terms and conditions on the use of the code is also
founded on elements of Intellectual Property rights, namely, the copyright regime. In terms of most license
conditions imposed under Open Source Models, the use of Source Code is permitted on condition that
there is an appropriate attribution to the author of the original source code.

In a recent German case, a three judge German Court gave recognition to the GPL by requiring the
defendant company to disclose the Source Code of its product that contained components of Open Source
Software. The Plaintiff’s case was founded on Copyright. This illustrates that both in Open
Source and commercial software models, the Copyright IP model remains the foundation for the license
conditions.
Idea-Expression Dichotomy

The safeguards provided in the IP Act of 2003, mentioned above, contain adequate safeguards against literal
copying of Software. This means that sufficient protection is given to situations where exact duplicates are
made through disk-to-disk copying. In several jurisdictions, the basis for safeguarding Software from non-
literal copying is increasingly becoming more and more uncertain. This is in view of the fact that copyright
per-se does not give a monopoly over the ideas; what it does is to prevent a person from copying or otherwise
using the tangible expression of ideas of the Copyright holder. In other words Copyright only protects the
expression of ideas and not the idea itself. Copying from a Software perspective can take a variety of forms. It
need not be limited to taking a disk-to-disk duplicate. It is possible to copy a Computer program in a wider
sense, for example the structure, flow and sequence of operations expressed in a Computer program may be
copied and if a different

programming language is used, the print out of the source code of the second program may NOT look
similar to the first program.
In Whelan Associates vs Jaslow Dental Laboratories Inc, the In Lotus Development Corp vs
impugned program was designed to assist dental labs. The same Borland International Inc, Lotus
person was involved in the development of the competing programs claimed that the defendant
but both were written in different computing languages. The first (Borland) had copied the same
was written in EDL and the second (intended for the microcomputer menu system for a competitive
market) written in BASIC. Therefore, there was no substantial literal spread sheet program. Both
similarity between the listings of the two programs. The US Court products were electronic
of Appeal (3rd Circuit) distinguished between the idea and expression spreadsheets intended to facilitate
and held that the purpose sought to be achieved, namely, the running accounting and other processes that
of dental labs was the idea, which was not protected by Copyright involve the manipulation of and
and stated that it was quite acceptable for others to write similar display of numerical data. It was
programs in different languages. However, in this instance the held that the menu command
structure of both programs was the same and so did the look and hierarchy in the Lotus 1-2-3 spread
feel and because both were done by the same person, it was held sheet was an idea and therefore not
that there was a copyrightable.
possibility of a copyright infringement.
Even in UK the trend has been similar. Therefore, if a company develops a unique piece of Software which
proves to have extensive marketing success, then, another company could develop their own version in order to
gain a share of the market (based on the first program). Copyright Law does not prevent this as long as the
first program is not literally copied (i.e. subject to disk to disk copying) or adapted. This principle in a way has
been established in the EU Software Directive. Article 1(2) of the said Directive explicitly requires all EU
member countries to protect Computer Programs as literary works but to exclude from protection “ideas and
principles which underlie any element of
a computer program, including those which underlie its interfaces”.

Additional protection measures for software

A new feature of the IP Act No. 36 of 2003 is the inclusion of a specific provision granting adequate protection
to “undisclosed information”. This is consistent with Article 39 of the TRIPS Agreement.
Section 160(6) of the Act provides that the disclosure and acquisition of undisclosed information
without the consent of the “the rightful holder” would constitute an act of unfair competition. Section 160 (6)
(b) further elaborates the above stating that the disclosure, acquisition or use of undisclosed information by
others without the consent of the rightful holder may result from (a) industrial espionage
(b) Breach of contract (c) Breach of confidence etc.

Therefore, these provisions in the IP Act of 2003 in effect gives statutory recognition to the English common
law principles under the Law of confidence, providing sufficient safeguards to all aspects information,
including the ideas behind the software12 and information relating to preparation of Software. The
requirement is to have proper contractual arrangements between the owner of such information and the user.
The use of Non-disclosure Agreements (NDA) accompanying contracts of employment has become a
phenomena in the Software industry even in Sri Lanka. In the context of the above provisions the breach of
such contractual obligations would attract the provisions of
Section 160(6) (b) of the IP Act of 2003 and may constitute an act of unfair competition. Even prior to the
enactment of the IP Act of 2003 confidential information was protected by means of contract law through
appropriate contractual measures such as Nondisclosure agreements. In Precision Tech Services (Pvt) Ltd vs
Ingram Micro Asia Ltd, the Commercial High Court of Colombo recognized in principle the concepts
embodied in a non-disclosure Agreement and granted an enjoining order preventing the defendant from
making use of the information provided by the Plaintiff under a NDA. However, the enjoining order was
dismissed on technical grounds. At the time this case was instituted before the Commercial High Court of
Colombo, the Section 160 of the IP Act of 2003 (discussed above) was not force and the basis of the action was
on breach of contract. In the context of the provisions contained in the IP Act of 2003 the Plaintiffs in similar
actions would be able to institute proceedings for an act of Unfair Competition under Section 160 of the IP
Act of 2003.

Most companies, especially those developing software with unique features, seems to increasingly rely more
and more on alternative measures such as the law of confidentiality to protect their products from possible
infringement. The enforcement of these measure depend a lot on the ability of a court in a particular
jurisdiction to give meaning and effect to contractual mechanisms used by companies to safeguard information
shared with others (including employees). The additional features provided under Section 160 of the IP Act No.
36 of 2003 facilitate this to a great extent.

4. Data Analysis and Interpretation

Break up of IPR Applications & Increasing trend of IPR Applications - 2013
5. Conclusion

Analysis brings forth two important points: that Internet as a medium is here to stay and that it has to
be taken seriously; and that existing intellectual property regime fails when it deals with computer
software on the Internet. The latter point needs a greater focus. There is a strong regime that protects
computer software, off-line, but existing regime fails when faced with problems that Internet throws up.
An issue that arises is whether one wants to extend existing intellectual property regime to Internet
or let Internet find solutions for itself, as it does in certain cases, with concepts like shareware. There
has to be a new system of law that may govern intellectual property on the Internet? But I believe that it
does not make sense to have a new or a sui generic system of law that would take care of these problems.
While idea that Internet can govern itself and take care of the problems that it faces is appealing, one has
to take into account the quantum of commerce that is being done on the Internet. This aspect cannot be
ignored and in order to facilitate and to protect this large financial interest, it may be best to have some
law in a form that would deal with the issues of protection of software on the Internet. The question is
whether to enact a whole new system of laws that deal with the Internet in particular or to modify the
existing regime. The enactment of a new system of laws does have its supporters, especially among the
software lobby, but it posses certain problems. It would mean a creation of a new system to enforce
these laws. Moreover, this would lead to destruction of the very concept for which the Internet has
been created, that is, the freedom of information.

Therefore, one will have to look into other option and see as to how one can modify the existing regime
that deals with the protection of computer software. The American government is the first to enact a
series of laws that put this idea into motion. These legislations attempt to empower the American
copyright laws to take into account the Internet. Numerous other jurisdictions have followed this lead. In
India, the existing intellectual property regime that deals with protection of computer software is the
Indian Copyright Act, 1957. The Act does not have any sections that deal with the piracy of computer software
from the Internet.

Though the Act, when it comes to computer software takes care of problems of off-line piracy, fails when it
has to deal with on-line piracy. The IT Act, 2000 has made significant amendments to other enactments such
as the Indian Penal Code, the Indian Evidence Act and the Code of Criminal Procedure. However, one area that
has remained untouched by the law is copyright. Although there are views taken that the existing principles of
copyright may be applied to the Internet through analogy. It is true that the medium does pose new challenges
which analogy may not be able to deal. There are proposed amendments to the Copyright Act, 1957, to deal
with various issues that arise. The Indian government may review the Copyright Act, 1957, in accordance
with WIPO treaties, and on the lines of the Digital Millennium Copyright Act. It may be noted that cyber
law will soon become a prescribed course of study for all law students. The subject has assumed great priority
in legal research as well.

Expected future of Software Protection

The copyright laws in India are set to be amended with the introduction of the provisions for anti-
circumvention and Rights Management Information in the Indian copyright regime although India is under no
obligation to introduce these changes as it is not a signatory to WCT or WPPT.

The Information Technology Act, 2000 requires a new outlook and orientation, which can be effectively used
to meet the challenges posed by the Intellectual Property Rights regime in this age of information technology.
Till the country has such a sound and strong legal base for the protection of Intellectual Property Rights, the
judiciary should play an active role in the protection of these rights, including the copyright. The situation is,
however, not as alarming as it is perceived and the existing legal system can effectively take care of any
 problems associated with copyright infringement.

.
6. Bibliography

 Article by National Council of Information technology, India

 Wikipedia for various sub headings
 An article on Copy right protection in Srilanka by Mr.Jayantha Fernando.
 Software Protection- India's Adoption of the International Instruments by HG.org
 http://copyright.gov.in/Documents/handbook.html
 http://copyright.gov.in/frmFAQ.aspx
 http://www.wipo.int/reference/en/
 http://www.ipindia.nic.in/
 http://cis-india.org/openness/publications/software-patents
 Innovation and patents - August 2013 Report by IBEF.org
 IP protection of software and software contracts in India by S K Verma
 http://www.legalserviceindia.com/article/L195-Copyright-Law-in-India.html