This
article is based on patent and copyright protection in the United States,
although many of the basic principles discussed will be applicable to the
intellectual property laws of other countries including India.
Law:
The general principles of Copyright are governed by the Indian Copyright Act
1957(as amended in 1999 for protection of Software piracy) in India and The
Digital Millennium Copyright act –1998 in U.S.A.
Intellectual Property Rights extends to
creation of software, designing of software architecture and writing of source
code etc.
Object: The law of Copyright
originally evolved to protect the rights of ‘authors of literary works’. The
U.S.Copyright Law was created "to promote the Progress of Science... by securing
for limited Times to Authors... the exclusive Right to their respective
Writings...” The copyright laws serve to protect the "writings" of "authors"
against unauthorized copying. Only those works that are "original" are
protected, and therefore, independent creation by another without access to the
copyrighted work would not be copyright infringement, and would, in fact,
entitle the second work to copyright protection in its own right.
The object of copyright law was to give
the ‘artist’ or ‘author’ exclusive right to his work for a limited period of
time. This right includes right to reproduce or make adaptations thereof and
also to hire or sell the work or any part thereof.
In fact, in 1980, the U.S. copyright
laws were amended to make explicit that computer programs, to the extent they
embody an author's original creation, are proper subject matter of copyright
In the computer software context, a
computer program, either in its original "source code" format, or in its
machine-readable format, is generally deemed to fall within the definition of a
"writing" for copyright purposes. Copyright law defines a "computer program"
as a set of statements or instructions to be used directly or indirectly in a
computer in order to bring about a certain result.
A computer program, in copyright jargon, is
an "original work of authorship fixed in a tangible medium of expression".
Protection:
Copyright protects the manner in which an idea is expressed, not the idea
itself. As a result, another person could misappropriate the idea itself. The
protection afforded by copyright is not absolute.
Infringement: When a person
buys software, he is given a right to use the contents according to the ‘Terms
of License’. Using a copyrighted material without permission of the owner or in
violation of the ‘Terms of License’ would amount to ‘infringement.
However, copyright is not said to be
violated in all cases of ‘fair use’. However, whether it was a case of ‘fair use
‘will depend on the circumstance of each case. For example, making copies of a
program. as back up, is considered ‘fair use’.
Creation: Copyright is a right that is
created automatically. However, providing a notice or registration with a
designated authority may help in case of disputes.
Software and Patents
Law: The Indian Patents Act
1970 does not cover patent of Software. The patent application process is quite
elaborate and time consuming. Detailed description of invention is required to
be given and detailed scrutiny is undertaken by the issuing authorities before a
patent is granted. Normally, in the U.S, a patent is granted for a period of 20
years.
Software is global business and hence
international software patents laws are of great importance to the vendors.
Generaly, patents are subjected to territorial jurisdiction of the granting
authority. The 1970 Patent Cooperation Treaty (PCT) has implemented
international one-stop patents. WIPO administers the PCT consisting of 108
countries including India. As a signatory to PCT, India is yet to start
accepting application for patents for software.
Object: In the U.S., unlike
copyright law, the relevant constitutional language for implementing the patent
law is "to promote the Progress of... useful Arts, by securing for limited Times
to... Inventors the exclusive Right to their... Discoveries." Because it is the
"useful arts" that are being protected, only a useful "process, machine,
manufacture, or composition of matter, or any... useful improvement thereof" can
be protected by a patent. In addition to being useful, to obtain a
patent, the invention must also be novel (new) and non-obvious.
The object of patent is to give the
owner a right to prevent others making, using or selling the invention.
Protection: Software is
expressed in terms of a ‘source code’. However, it is the ‘underlying design’
which represents the idea which is patentable not the ‘code’. In the software
context, patents help to protect the creativity or the idea or the functionality
of the software.
Creation: Patents are
created by a process of application and approval, that is, registration with the
appropriate authority. It requires full disclosure of the invention. In the U.S.
patents have a limited term of 20 years after which they go into the public
domain.
Infringement: of a patent
consists of unauthorized making, using, offering for sale or selling of any
patented item during the term of the patent.
History of Copyright and Patent
protection for computer software in the U.S.:
Copyright protection:
Perhaps the most notable software copyright
case in the mid-1980s was
Whelan Associates, Inc. v. Jaslow Dental
Laboratory, Inc., a 1986 case. In this case, the defendant obtained an
unauthorized copy of the plaintiff's source code for its software and developed
its own competing version of the plaintiff's software application.
In finding for the plaintiff, the court
ruled that "copyright protection of computer programs may extend beyond the
programs' literal code to their structure, sequence and organization." In
reaching this decision, the court noted that the majority of the creative effort
in developing a computer program involves the design rather than the mere coding
of the program. The court in Whelan therefore created a relatively broad
definition for copyrightable subject of software
In 1992, the Second Circuit Federal Court of Appeals decided
the Computer Associates Int'l v. Altai, Inc., which specifically rejected
the simplistic test regarding the scope of copyright protection formulated in
Whelan. In Computer Associates, the court developed an elaborate three-part test
for determining whether software is infringed under the copyright laws. The
test, which has become known as the "abstraction/filtration/comparison"
test. Rather than treating the non-literal elements of a computer program as a
unified whole, the Altai approach uses "analytic dissection" to break the
program into its constituent parts, and then evaluates the copyrightability of
each of those parts. This test resulted in a general narrowing of
protection afforded to software under the copyright laws.
In 1995 in the Lotus vs. Borland case,
Lotus had sued Borland for copying the menu command hierarchy of its 1-2-3
spreadsheet program. Borland admitted copying the menu structure, but both
parties agreed that Borland had not taken any Lotus code. The First Circuit
concluded that Lotus' menu structure was not entitled to any copyright
protection because it was a "method of operation," which section 102(b) of the
Copyright Act says is unprotectable. This decision resulted in further
narrowing the protection available to software under copyright law.
Patent protection:
Prior to the early 1980s, patent protection
was not available for computer programs. Patent protection was rejected by the
Supreme Court in Gottschalk v. Benson on the grounds that a computer
program merely recites a mathematical algorithm, and that
mathematical algorithms are laws of nature that do not constitute patentable
subject matter.
In 1981 the U.S. Supreme Court decided
Diamond v. Diehr, which expressly held for the first time that computer
software was patentable provided that any claims to the computer software were
not merely a procedure for solving a mathematical formula. Instead, the court
required a look at the invention as a whole. However, two exceptions remained in
place: the mathematical algorithm exception and, the business method
exception.
The Court of Appeals for the Federal
Circuit was established in 1982 as the sole appellate court authorized to hear
all patent cases. The Federal Circuit promptly made it clear that patent
protection for software would assume greater prominence in the future.
During the mid- and late 1980s, the
preferred means of protecting computer software began to shift from copyrights
to patents. Specifically, more companies began to file patent applications for
their computer software inventions as the U.S. Patent Office began to relax its
standards somewhat for issuing computer software patents and the federal courts
upheld the majority of patents issued.
However, it was not until the early 1990s
that software vendors clearly favored patents for computer software. The reason
for the change stemmed in part from a series of federal court decisions, led by
Computer Associates v. Altai as well as Lotus v. Borland, which ruled that
copyright protection for computer software should be applied narrowly to
essentially protect little more than the exact copying of software code. These
courts sent the message that broad protection for the functionality of computer
software should be sought under patent laws.
In 1998, the Court of Appeals for the
Federal Circuit threw out both exceptions (the mathematical algorithm exception
and the business method exception) in State Street Bank & Trust
Company v. Signature Financial Group. It found the mathematical
algorithm test misleading and determined that the business method exception had
never existed: prior business method inventions had always been denied on other
grounds. The court held that instead of focusing on categories of subject
matter, it should ascertain the invention’s practical utility, which should then
be tested together with the requirements of novelty and non-obviousness. It
clearly set the trend in favor of patents for software. The trend in favor
of patentability, started in the U.S. in part via of the instantiation of the
Court of Appeals for the Federal Circuit appears to continue.
Combination of Patent and Copyright-Pros
and cons
There is no question that patent and copyright law can
coexist in the software context. Patent and copyright laws protect
distinct aspects of a computer program. While patent law provides protection for
the process or method performed by a computer in accordance with a program,
copyright law protects the expression of that process or method. While patents
protect any novel, non-obvious, and useful process, a copyright can protect a
multitude of expressions that implement that process. Besides, the patent and
copyright statutes are independent, and there is no reason to believe that
changes in one statute mean changes in the other.
Besides, copyright contains none of the safeguards of patent
law's validity rules and examination procedures. Judge Boudin noted in his
concurrence in Lotus v. Borland, "it is no accident that patent
protection has preconditions that copyright protection does not-notably, the
requirements of novelty and non-obviousness-and that patents are granted for a
shorter period than copyrights. As software programs are subject to the
dynamics of fast changing technology patents will be more advantageous in the
long run as they give place to newer innovations in less time. In fact, validity
of software patents may be even further reduced to 10-12 years.
Conclusion
A software consists of an ‘original
idea’ as well expression of the idea in the form of a ‘source code’. The former
can be patented whereas the later can be copyrighted.
While copyright protection automatically
exists in software immediately upon its expression in a tangible form, one must
apply for a patent with the U.S. Patent Office (India has yet to initiate such a
procedure). Copyright by itself will only prevent others from making, using and
selling copies of the software. But, if the software is also patented, it can
prevent a potential competitor from making use of the same functionality by
writing not the same but equivalent code.
While patents are generally viewed as
providing broader legal protection than copyrights, patents almost always cost
much more, in terms of time and money, to procure and perfect, than copyrights.
The heart of intellectual property law is
the balancing of (a) financially rewarding creation through granting of
exclusive rights to the author and (b) promoting the free flow of ideas to
facilitate more creation. No doubt, giving the software developer proprietary
right to his creation will serve as an incentive for more innovations which will
benefit the society as a whole. However, ‘there is no such thing as a free
lunch’, society will have to pay for it in the form of higher prices of original
software.
References:
Study Material-Cyber law College
Software Copyright Problems by Mark
Grossman
Software Protection by Gregory
Software Patent Law:United States and Europe compared
