Copyright protection of software

YES THEY ARE PROTECTED

Respected Tripathi sir,

Thanks for sharing the lecture delivered by Hon'ble Mr. Justice Yatindra Singh , Judge, Allahabad High Court . I read this lecture and I am really thankful to sharing this kind of lecture.

Thanking you,

Hiren U. Trivedi

Trade Marks Attorney & Advocate

Gujarat High Court

Cell No. 9925138257

Sir, as far as I know, computer softwares cannot be protected in India as of now, unless they have hardware component involved along with it for its functioning. The article you have mentioned speaks about protection by copyright to the software in other States. Here, we cannot get copyright protection exclusively for softwares.

Sir, a software can be protected under copyright in India, but not under patent Act. I got confused. Sorry.

copyright is the set of excutive right granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. These rights can be licensed, transferred and/or assigned. Copyright lasts for a certain time period after which the work is said to enter the public domain . Copyright applies to a wide range of works that are substantive and fixed in a medium. Some jurisdictions also recognize "moral rights" of the creator of a work, such as the right to be credited for the work. Copyright is described under the umbrella term intellectual property along with patents and trademarks.

Software Copyright is a grey area of law and the issue is not settled in even USA where there are conflicting judgments on the issues. See (1) Whelan Associates, Inc. v. Jaslow Dental Laboratories, Inc., 797 F2d 1222 (3d Cir. 1986), (2) E.F. Johnson Co., v. Uniden Corp. of America, 623 FSupp 1485 (D. Minn 1985) and (3) Computer Associates International, Inc. v. Altai, Inc., 982 F2d 693, 702 (2d Cir. 1992).

I think Sanjeev, has correctly stated the position of software protection. According to some author on Intellectual Property Law in India, Computer software includes many items like the programmed manuals, adapters,punchcards and magnetic tapes or discs required for operation of computers.Programmed mannuals and papers and computer printouts may be considered as literay work. but the concept or idea of algorithms, frequently used in computer programming is not capable of copyright protection. ounched cards which contains certain information in a particular notation may be considered as literary work. programmed devised for the working of computer is generally regarded as literary work. Magnetic tapes and discs including floppy discs which contains information recorded by means of electronic impulses may be considered as databases and accordingly literary work by definition.

Members may also go through the following article:

COURSE MANAGEMENT SOFTWARE & COPYRIGHT

            Many colleges and universities have begun to use course management software(course manager) not only for online courses, but also as a supplement toface-to-face classes.Such softwareprovides a basic structure or template for faculty members to place someportions of a course or even the entire course online.Examples of these products are Blackboard,WebCT and WebTycho. The software creates a website for a course that can beaccessed by students; some restrict access to students enrolled in thatparticular course while others have features that permit the course pages to beopen to everyone on campus.Most suchsoftware provides standardized templates for the course syllabus, the classroster, announcements, a threaded discussion list, and shared space for studentprojects, and the like.The instructor canalso insert various materials such as lecture notes, outlines and onlineexaminations and exercises. Because the course webpage is web-based, links toother materials on the web provide other resources for students.Additionally, reading material for the coursecan included on the webpage.It is this latter activity that creates the primary copyright concern.Many faculty members appear to be unaware that duplicating copyrighted materials and uploading them into the course management software raises all of the same concerns as multiple copying for the classroom or creating coursepacks for students.

            Incorporating copyrighted literary works into course management software canoccur in three ways.(1) The most commonway at present is that the faculty member scans a printed article or bookchapter and creates it as an HTML file and then uploads it into the coursemanager.(2) The material may alreadyexist in digital format which makes it even easier to upload into the coursesoftware package.(3) Most course managersalso have the ability to incorporate links to digital content on the web,including licensed products.For thelicensed titles, only authorized, authenticated users are eligible to accessthat content.In fact, when students clickon the link, often they are required to input their student number or a passwordin order to gain access to the linked content.Each of the three types of incorporatingcopyrighted materials into the course manager raises copyright concerns.

Many teachers seem to be unaware that digitizing articles, book chapters andother copyrighted work to place in the course management software in order toprovide access for students may constitute copyright infringement.Because scanner technology differs from thephotocopier, faculty members may not equate both activities as potentialcopyright infringement.Over the past fewdecades, most faculty members have come to understand that photocopyingmaterials for students has limits such as those detailed in the Guidelines onMultiple Copying for Classroom Use^[1][1]and the limitations on thereproduction of coursepacks the coursepack cases have imposed.Reproducing materials, whether throughphotocopying or digitizing the work, is still a reproduction.If the activity exceeds fair use in either theanalog or digital world, it is infringement.This is not to say that it is never fair use todigitize a work and put it on the course website for students to read.For example, the faculty member could seek andreceive permission to digitize the work and put it in the course manager for thestudents.Or, the faculty member couldfollow the portion, time and other limitations contained in the Multiple CopyingGuidelines but instead of photocopying the works and distributing copies to thestudents, might digitize the works and upload them onto the course webpage.One could argue that this is fair use as theequivalent of photocopying for students within Guidelines.

For material that already exists in digital format, uploading them onto thecourse website is no different than digitizing analog content for the coursemanager.Unless the work is within thepublic domain, the faculty member should seek permission or follow the ClassroomGuidelines.Some faculty members prefer toreproduce articles and other materials for which the institution has a licenseand to upload the full text onto the course website.This may be permissible under the institution’slicense agreement, but not all licenses permit such uploading.

Linking to web content causes the fewest copyright problems.For linking to works on the open web, there areno restrictions.For licensed content,however, there may be restrictions.Somelicense agreements for the online materials do not permit linking into thecontent from course webpages.The facultymember should consult the college or university librarian to ensure that theinstitution’s license permits this linking.Another linking concern with course managementsoftware is that the default setting seems to be for in-line links as opposed toout links.An in-line link brings anotherwebpage into a frame or window created on the webpage as opposed to going outonto the web.Most experts opine thatthere is less difficulty with out links since there is no likelihood ofconfusion as to sponsorship as to which entity created the content.

 Of even greater concern is reproducingnontext works such as sound recordings, motion pictures or portionsthereof.While digitizing small portionsof such works is likely to be fair use, using entire works probably is not, noris it permitted under the newly enacted TEACH Act absent permission from the copyrightholder.

Although course management software makes it very easyfor faculty members to create online courses or portions of courses, that veryease could mislead teachers into believing that what is technological possibledoes not infringe copyright.Thus,colleges and universities that make course managersavailable to faculty may want to provideinformation about copyright law to assist faculty in making appropriatedecisions about materials to include on course webpages.

As I have earlier stated the Software copyright is the most controversial area of Copyright law and I have quoted the relevant judgments of the US Courts giving conflicting judgments on test for software infringement. However, the courts are now adopting the principles laid down in Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693, 702 (2d Cir. 1992) to determine when there is a substantial similarity between two computer programs. Often to determine whether there is so called substantial copying or similarity between one software i.e. for instance source code/object code of the software and other software and also the protectable elements of other copyrightable software is not always easily answered in computer software realm. What are protectable elements of software is controversial. The literal copying is infringement while the copying of non literal elements, like common steps in development software may be excusable applying the principle of doctrine of merger as laid down by the US Supreme Court in the seminal case of Baker v Selden , 101 U.S. 99 (1880). The doctrine of merger says that when there are only few or very limited ways to express an idea, then the expression itself is not protectable; in that case expression is deemed to merge with the idea, resulting in a non-copyrightable expression which is not protectable. For example, you may have seen that graphical user interface of many software are same because there are only limited ways to doing it and hence some judgments suggest that GUI is not copyrightable. However, some judgments suggest that even GUI may be copyright protectable. However, one cannot make literal imitation of source code or object code of the software as the same is copyright protectable. It would be pertinent to mention here that Article 10 of the Trade Related Intellectual Property Rights Agreement (TRIPs) expressly provides that computer programs, whether in source code or object code shall be protected as literary works under the Berne Convention, 1971. India is a signatory to the Berne Convention and to give effect to the mandate of Berne convention and Article 10 of the TRIPS, it amended its Copyright Act, 1957 in 1995 bringing within its fold computer programme also as literary work to be protected by Copyright Act. The Section 2 (o) of the Copyright Act, 1957 defines “literary work” to include computer programme as well as computer database. The issue of software copyright is not raised before the Indian Court as it has been before US & UK Courts where litigation pertaining to software infringement is frequent, and therefore the law has started to develop and taking some direction there, but the conflicting issue of protectable elements of software has not yet come before the Indian Court and remains a grey area of law here and therefore, it would be interesting to see the approach of Indian Courts or Supreme Court of India as to which judgment of US Court or UK court it follows or whether it like most of courts around the world follows Altai test. Software Copyright is a very difficult & controversial area of law and needs expertise in software engineering apart from Copyright law.

To understand the issue of Software copyright, I would suggest a very nice legal article on copyright infringement of computer software published in New York Law Journal.

The link is:

https://euro.ecom.cmu.edu/program/law/08-732/Copyright/CopyrightInfringementOfSoftware.pdf

Dear Suchitra,

        A software program along with hardware comes under patent protection, but computer programs come under copyright protection.

sir.

i am a research scholar in B.H.U..Your effort in sharing the views of honourable justice Yatinder singh with us is of immense help.i kindly request you to please keep such updates as it is of great help for me as research scholar to know the views of judiciary on topic relevant to my research.expecting more such updates.please mail me at anupammishrabhu@gmail.com.