IP PROTECTION OF SOFTWARE

IN INDIA
-Satish Venkatasubbu
Reg# JKT19043
IV Semester LLB
JSS Law College, Mysore
TOPICS COVERED

 Introduction
 Software and Copyright

 Software and CopyLeft(Licensing)

 Software and Patent

 Software and Trade secrets & Trade marks

 Software Infringement Types

 Remedies against Infringement

 Case Laws

 Conclusion

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INTRODUCTION

 Intellectual Property is any creation of human mind,

which has value and needs protection.
 Software, in its most general sense, is a set of instructions
or programs instructing a computer to do specific tasks.
 The fast growing software industry and a faster pace of
technological advancements have made it essential to
protect the intellectual property (IP) vested in the
software, programs and all those machines that use such
programs and software. 
 In India, Software can be protected as a copyright under
CopyRight Act, 1957, as a patent under Patent Act,2002
and also as a trade secret under Indian Contracts Act,
1872 and by law of Torts. 2
SOFTWARE AND COPYRIGHT

 Copyright is one of the kinds of intellectual property

rights which protect original literary, musical, artistic,
dramatic works etc. from its unauthorized use.
 section 2(o) of the Copyright Act 1957 which
defines "literary works" includes computer programmes,
tables and compilations including computer databases as
per the 1994 amendment.
 Computer programmes (software) are considered as
literary works as they are expressed by way of source
code and object code. The source and object code of
software constitutes the literal elements of a computer
programme and are protected under the Copyright.
 Computer software owner’s rights are limited by ‘fair
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use’ and ‘reverse engineering’
SOFTWARE AND COPYLEFT(LICENSING)

 For Software, the term Copyleft was introduced, Copyleft

uses licensing to enforce freedom of use (including all other
rights) and grant subsequent users to modify, distribute, and
use the software as they please. 

Note: LGPL – Lesser General Public License

SOFTWARE AND PATENTS

 Patent can protect both the ideas and the functional

aspect of the software. But, under section 3 of the Patent
Act, computer programmes(software) “per se” are
explicitly excluded from patentability.
 A computer program will become patentable when such
a computer program is implemented in hardware to solve
a technical problem, provided the hardware component
is shown to form an essential part of the invention.
 A computer program can be patented when it has
hardware limitations, implements a technical process and
has a technical effect.
 A Patent offers a broader protection over software, it can
protect both the ideas and the functional aspect of the 5
software.
SOFTWARE AND TRADE SECRETS & TRADE MARKS

 Idea, structure or design specification of software may be

included as a trade secret. Trade secret protection depends
on the nature of the software and how it is distributed.
 Trade Secrets are protected under contract and tort laws in
India and limited to the parties that sign the contract.
 The software products can also have trademark that will
distinguish the products from the other manufacturers and
can be identified by the consumer to be coming from
particular manufacturer. E.g. MS WORD, Acrobat are all
trademarks of their respective manufacturers.
 Trademark rights may be used to prevent others from using
a confusingly similar mark, but trademark will not protect
the software program itself from recreation or imitation.  6
SOFTWARE INFRINGEMENT TYPES

 Software Piracy: It is the reproduction, distribution or use of a

software product without the expressed permission of its author.
 Under Licensing: End users (both home and corporate users)
who are utilizing unlicensed software on their systems, or who
have installed more copies than they are entitled to under their
license agreement.
 Software counterfeiting: The illegal duplication and sale of
software in a form that is almost identical to the genuine product.
 Hard disk loading: Computer dealers pre-installing illegal
copies of software onto PCs prior to sale. Some dealers use one
legally acquired copy but install it on many machines.
 Copy/ReUse of parts of Software: Refers to usage of
part/complete software source code or algorithms or functions
without permission or license.
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 Trademark/Domain Name/Layout infringement
SOFTWARE INFRINGEMENT REMEDIES

 Following remedies are available in India for Intellectual

Property Infringement of software:
 Temporary and permanent injunctions
 Impounding and destruction of all infringing copies, including
masters
 Actual monetary damages plus the infringers' profits
 Statutory damages
 Recovery of court costs and reasonable attorneys' fees
 Criminal prosecution

 As a preventive measure, software license audits and

software/hardware locks are used to prevent some of
infringements. 8
CASE LAWS

 Microsoft Corporation & Ors Vs Satveer Gaur & Anr: During software
license audit, Microsoft discovered a copyright violation and brought a case
before the Delhi High Court. Court fined them for 6 lakh rupees as
compensation.
 MSC Software Corporation & Anr Vs. S. Ramanathan & Anr: Here
plaintiff claimed that the defendant company was using its software without
any license or authorization. Defendant company claimed that one of the
trainees downloaded from internet and used it, and upon notice it was
deleted. Court decreed the suit in favour of MSC Corporation and stated that
costs equal to value of the court fees paid on the plaint and professional
fee/expenses in the sum of Rs. 1.5 lacs be paid by the ATS rather than
damages.
 Tata Consultancy Services Vs State of Andhra Pradesh: Supreme Court
considered irrespective of the IP of a software, computer software can be
considered as 'goods' and is liable for taxes.
 www.yahoo.com Vs www.yahooindia.com: It has been held that “the
domain name serves the same function as a trade mark, and is not a mere 9
address or like finding number on the internet, and therefore, it is entitled to
equal protection as a trademark”.
CONCLUSION - SUMMARY

 The fast-paced growth of the software industry has made it essential

to protect the intellectual property vested in the software programmes
and the machines using such software programmes. 
 Depending on the nature of software to be protected, the applicant can
either opt for Copyright or Patent.
 We also looked at how Trademarks, TradeSecrets, CopyLeft and other
traditional protection methods like Contracts, Licensing, and Torts can
be used to protect the Intellectual properties related to software.
 We also looked at various types of software IP Infringements and the
remedies available.
 All in all, India has taken many positive steps toward improving its
IPR regime and is expected to do much more in the coming years to
streamline itself with the best practices in the field of intellectual
property rights.
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THANKS FOR YOUR TIME

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