Computer instructions that tell the computer how to work is software. Software is an extremely sensitive creation for the creator. Software is at risk at every stage of its construction. There is a risk of the creation getting stolen, hacked or leaked. Once such a calamity happens the creation is compromised. The drawbacks of a software getting stolen , hacked or leaked can lead to a creators loss of revenue, loss of idea or even loss of ones business model in entirety . Within no time of its getting stolen , it could be multiplied 10 folds and the creation no longer remains unique.

However, imagine if you could stop the above by providing adequate protection to your creation and in return for your simple effort, enjoy uninterrupted branding and popularity in the market perpetually. Is "Legal Protection" in India that concrete or are there ways to circumvent the same. Does one need to combine legal regime and technological methods to protect software. For a deeper understanding let us examine further.

Understanding the law pertaining Copy Right

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work.

By Amendment Act No. 38 of 1994, the Copy right Act was amended to incorporate "the computer programmes, tables and compilations including computer [database]" within the meaning of literary work. Subject to this incorporation all provisions applicable to general literary works became applicable to computer programmes as well.

In India, a copy right is granted to the author on creation of an original literary, dramatic, musical and artistic work automatically. But nevertheless, it is advisable to register the creation with the registrar of copyrights. This is done as the seal of the copyright office acts as conclusive admissible evidence in all courts of law without and a party under dispute may not be required to produce further proof or original contents. Section 48 of the Copyright Act states "Registration of Copyright to be prima facie evidence of particulars entered therein".

For a copyright to subsist in India, the work must be original literary work and it must first be published in India, or if it is published outside India, the author at the date of Publication, must be a citizen of India. And in case of an unpublished work, the author must be a citizen of India or domiciled in India, at the date of making the work. One needs to understand that India is a signatory to several treaties and conventions. India is a signatory to the universal copyright convention, the Berne convention, the Phonogram convention and the World Trade Organization. Vide these conventions a copyright having foreign origin will also be a copyrighted literary work in india, provided the section 40-43 are satisfied, however, the protection granted to a work in India will be no longer than the period of protection granted   by the origin country. The laws governing such situations is covered under International Copy right order 1999 under which India is a signatory to the aforementioned conventions.

The Copy right act defined "communication to the public" as making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actual sees, hears or otherwise enjoys the work or performance so made available. Now as an architect of the software, you must be wondering, whether you are required to publish code and programming in public? The answer is a simple no. Unlike a book, if a software code and programming is published, all the protection will automatically be lost. Hence all creators of software will derive their protection and strength from the fact that distribution of the software itself for the use of the public can said to be 'communication to the public'.

The Technology

The scope of copyright protection in software in general extends to

  • screen displays
  • preparatory design material
  • object code, subject code
  • information stored on computer media.
  • Data base
  • Computer output
  • Programming language.

The aforesaid examples are a range of material that are subject to protection during the stage when the software is under development and once the software is fully developed , the code itself is subject to copyright protection. The copyright act has defined computer and computer programme both. By the simple reading of both the definitions it can be asserted that definitions of the same broadly covers different forms of software provided the software be in a machine readable form.  Computer Programs are useful to provide instructions to the computer to perform a specific task. These programs are written using programming languages. There are many programming languages, and the programmer can select a language to develop programs or software. Source Code and Object Code are two terms associated with programming. The difference between the Source Code and Object Code is that Source Code is a collection of computer instructions written using a human-readable programming language while Object Code is a sequence of statements in machine language, and is the output after the compiler or an assembler converts the Source Code. In simpler terms Source Code is in text form, human readable code and is generated by human or programmer. And Object Code  is in the form of binary numbers in machine readable formats and  is Generated by Compiler as an Output.

Example a software written in the format of a readable language such that C++, JAVA will become the source code. Further once the source code once is broken into machine language with the help of computer , this software is known as object code.

Software covered under the copyright protection law:

a. Source and Object Code: Article 10 of the TRIPS Agreement clarifies that software whether in source or objects code, are protected as 'literary works'. Article 4 of the World Intellectual Property Organization, Copy Right Treaty 1996 and Copy Right Act 1956 all imply and reiterate that protection is extended to both source code and object code.

Initially software copy rights were granted only to source code leaving out the object code, however, gradually the trend is changing world wide. Now an object code that is derived from source code using a part of the computer, known as an assembler. The object code is therefore to be regarded as an adaption or reproduction of the source code. Since the source code is protected by copyright, the machine code will also be protected as an adaption1 .

b. An Operating System Program and Application Program: All programmes such as Microsoft word, opera, music player will fall under the category of application programmes and windows,MAC OS fall under the category of Operating System. A computer in order to bring about a certain result makes no distinction between application programs and operating programs. Both the program tells the computer to do something. Since copy right protects only the instructions, it makes no difference that whether wither of the program will be accorded less copyright protection than the other, hence both kinds are registerable for protection.2

c. Lastly, a collection of input and output formats used by a computer is copyrightable.


1 Sega Enterprises Ltd.vs Richards

2 Apple computer,inc vs. Franklin Computer Corp.

Originally published Khurana & Khurana, May 2020

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.