Like any other industry, intellectual property rights are at the core foundation of the software industry and refers to a range of official/unofficial rights of ownership in an asset such as a software. The law provides different methods for protecting these rights of ownership based on their type.
There are essentially four types of intellectual property rights relevant to software patents, copyrights, trade secrets and trademarks.
A patent can preserve the unique and secret aspect of an idea and its functional aspect. Obtaining a patent is very difficult as compared to obtaining a copyright. A thorough disclosure is required with the software. The patent holder has to reveal the full details of a program to a competent programmer for building a program. Under Section 3(k) of the Indian Patents Act 1970, computer programmes “per se” are excluded from patentability. However, Section 3(k) is not a blanket provision that excludes all the computer programmes from being patentable. A computer programme is patentable once it transcends the ‘per se' status and is enabled by a hardware component to solve a technical problem, provided that the hardware component becomes inevitable part of the invention. Other way to establish patentability of software invention is to show some kind of interdependence between the software and hardware components in order to work a patent.
Patent Applications involving software usually fall into the following three categories:
1) Claims relating to the method or process in the software providing a technical solution are pat entable provided it does not contain business methods, mathematical formulae, algorithms and computer programmes per se.
2) Claims relating to apparatus or system are pat entable provided it resolves the means plus func tion criteria.
3) Claims relating to computer-readable medium or computer programme products are nothing but computer programmes per se and hence not pat entable.
A copyright is used to protect original literary works expressed in some material form. A computer programme can be compared to a literary work as it has a source code and an object code, hence can be protected by copyright. The visual appearance of the software can also be protected via copyright. The owner of a copyright owns the rights to assign or grant a license in respect of his/her copyrighted work. However, copyright's owner's rights are limited by ‘fair use' and ‘reverse engineering'. Under ‘fair use' making copies or adaptations of the software by professors and students for learning/ teaching purposes is permissible while ‘reverse engineering' is permissible for developmental needs.
There is also a need for information security specialists to be familiar with necessary concepts of copyright law. Copyright law works as a very powerful legal tool in protecting software, both before a security incident and surely after a security incident. This type of breach could be in the form of DDOS attack, cyber insurgency like virus, worm attacks, mishandling and misuse of data, computer programs, documentation and similar material. In many countries, copyright legislation is amended or revised to provide explicit laws to protect computer programs.
Trade secret is also a significant asset in information technology as many features of software, such as code, idea, and the way it is expressed can be protected in the form of trade secrets. A trade secret secures something of value and usefulness. This law protects the private aspects of ideas which are known only to the discoverer or his confidants. Once disclosed, trade secrets are lost as such and are only protected by the law for trade secrets. The application of trade secret law is very broad in the computer range, where even a slight head start in the advancement of software or hardware can provide a significant competitive influence.
Trademark can be used to protect the name of a software, logo, and slogan/tagline. Trademarks can be used to protect the brand of a software.
Software or computer programs are majorly subject of copyright. However, obtaining a copyright is like sitting in a bench, in which there is scope for people to sit adjacent to you, meaning it would be easier for other developers/hackers to achieve the same functionality with a different set of code/algorithm. However, patenting a ‘software' is like sitting in an ‘executive chair'that gives better protection over the use of the invention. Further, today there is a need to evolve a ‘cyber-jurisdiction' based on which ‘cyber ethics' can be evaluated/ criticized and reformed. Also, there is a dire need for importing IPR enforcement ideas and practices from parallel fields to the field of Information Technology.
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.