India: Copyrighting Software vs. Patenting Software

Last Updated: 13 November 2014
Article by Zoya Nafis

When the protection of software is questioned the biggest challenge is to analyze the nature of software: Whether software is an invention or a discovery and whether it is a literary work or a technical work? The ambiguity arises as the work of the computer programmer can fall into both technical and creative heads.

Copyrighting Software

A copyright protects a unique work in the tangible, fixed structure in which it has been set down. It protects just the representation of the work, and not the thought underlying the work. The main role of copyright is to push the trade of data and expression of ideas that may profit society. The protection of a creator's enthusiasm toward his creative work is additionally a point of copyright, a copyright holder has the exclusive right to make copies, prepare derivative works, and circulate or distribute copies of the work for the length of time of the writer's life in addition to sixty years.

Copyright was originally meant to protect literary works, such as books, works of art, music, and later, films and videos. There was a lot of opposition when the copyright was extended to protect computer programs as it is nothing but a technological development. To counter this opposition, arguments were posed that the software is not only a technology, but also a literary medium or text.

Now Copyright protection is also available for computer programs which can qualify as "writings" or "literary work" but it protects only the form of the writing or the expression; it does not insulate inventive ideas from infringement. Again protection through copyright would undermine the investors' confidence to invest in the research for developing computer programs. On the other hand, an advantage of the copyright form of protection from the viewpoint of the technical world is that it is unlikely to grow into a 'roadblock" monopoly; if the owner of a copyright on an important program refuses to license, he has no right to prevent anyone else from developing the program independently, even if the second program turns out to be similar version of the first.

Sadly, the understanding of copyright law as connected to software has not yet arrived at a purpose of consistency, and the protection gave by copyright is moderately powerless. Under copyright law, software is viewed as a "literary work". Clearly, duplicating a literary work verbatim is literary theft or infringement; however the courts additionally see non-literal replicating as infringement. On the off chance that two meets expectations are not "considerably comparable or similar" in embodiment, then there is no infringement. Applying this obscure principle to software is impeded by the absence of specialized aptitude amongst the legal community and an absence of clear definitions as they relate to software.

Patenting Software

Patenting is turning into the strategy for decision for viable protection of original computer programs because of the weak protection given by copyright protection. While a copyright protects an original work in the tangible settled form or structure in which it has been set down, a patent protects the making of inventive ideas and additionally their lessening to practice.

A patent holder has the right to keep others from making, offering, or utilizing a protected invention for twenty years from the documenting date of the patent application. Keeping in mind the end goal to meet patentability criteria, a thought must be novel, useful and non-obvious to one of "ordinary skilled" in the field of the invention.

Progressively software is, no doubt depicted as an accumulation of techniques, as a special machine, or both, empowering the protection of the inventive ideas driving a unique system. Getting the courts to movement towards this point of view has been a lengthy, difficult experience, and has produced a fair measure of disarray.

Patent protection is desirable from the developer's point of view as it affords remedies against the unauthorized manufacture or use of the protected product. The main arguments favoring patent protection of software-related inventions include the evolving nature of software, the fact that patents are necessary, the many positive effects resulting from patents, and the usefulness of patents in the evaluation of a company's intangible assets. It induces disclosure and wide use of the inventions. In order to obtain patent the applicant must disclose the invention specific enough that the invention can be reproduced by a person with ordinary skill in the appropriate art, either under license or free of cost when the patent has expired. It induces development and commercialization of inventions. In contrast to the protection provided by copyright registration or trade secrets, patent protection is not disturbed by independent conception or reverse engineering of theclaimed invention by a third party at a later date.

However, opponents of patent protection for computer software generally support their position by commenting on the nature of computer software, as the novelty and utility reside in its algorithm, not in its physical structure. Since algorithm cannot be patented because it is a mathematical formula. Further they suggest that patent protection for software is unnecessary as they are already protected with copyright protection and there is no need for additional protection.


The legal scenario of patentability of software-related inventions has changed tremendously over the last several years. The digital era is dynamic in terms of innovation and economic developments; a country's ability to position itself on this market will substantially impact its economics and wealth.

The importance of software lies in its functionality. The main purpose of patent protection is to protect functionality whereas copyright just protects the expression. However, Patent law as a means of implementing innovation policies, has to remain under democratic control, and the extension of patentability to new areas should be carefully examined with respect not only to the expected benefits for the users of the patent system, but also for society at large. It is necessary to harmonize two fundamental rights, including the right to ownership in the case of IP holders and the right to access to the culture and information that users have.

End Notes:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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