Software Protection and Open Source Software



In India, software is essentially protected under Copyright Act, 1957 (“Copyright Act”) and Patents Act, 1970 (“Patents Act”). Copyright Act protects the expression of an idea of the author who has developed the software i.e., the creativity in the source and object code, whereas, Patents Act, though per se does not protect software, grants protection to the manifestation of an idea in the form of a product or process i.e., it protects software as a product/process which satisfy the tests of novelty, invention and industrial application.


Copyright Act


Section 2(o) of the Copyright Act defines “literary works” to include “computer programmes, tables and compilations including computer databases”. Section 2(ffc) of the Copyright Act defines “computer programme” as “a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result”. Accordingly, Copyright Act protects computer programmes including software as “literary works” i.e., it protects the software owner’s right to inter alia sell or give on commercial rental any copy of the software.


Patents Act


Section 3(k) of the Patents Act introduced by Patent Amendment Act, 2002, states that “a mathematical or business method or a computer programme per se or algorithms” are not inventions and therefore are not patentable. Thereby, excluding software from the ambit of patent protection.


However, the intention and meaning of words “per se” stands clarified in Report of the Joint Committee presented to the Rajya Sabha on 19th December, 2001 while introducing the provision, which states that “In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programmes as such are not intended to be granted patent.


In view of the clarification along with various guidelines released from time to time by the Patent office with respect to computer related inventions, what appears is that software per se is not patentable but inventions that have software as one of the elements in conjunction with others such as hardware are protected under the Patents Act provided it satisfies the tests of novelty, invention and industrial application.


In fact, the Delhi High Court, vide its recent order dated 12.12.2019 in Ferid Allani v. Union of India and Ors[1] held that the bar under Section 3(k) of the Patents Act was with respect to “..'computer programs per se' specifically and not on all inventions based upon computer program.” The court further held that if an invention involves a “technical effect” or a “technical contribution” it is not barred from protection under the Patents Act even though it is based on a computer program.


The Delhi High Court has provided much required clarity on the scope and meaning of the term “computer programs per se” for determining patentability of inventions based on computer programs. The Delhi High Court has emphasized on the importance of technical effect/technical contribution of a computer program based invention to determine its patentability and rejected the principle of bar of patentability of an invention merely because it was based on a computer program.


Open Source Software (“OSS”)


Software, where source code and object code, both are freely available is called an OSS. The OSS model involves a copyright software which is licensed for use, improvement and modification either on reciprocal terms where modifications/alterations to the OSS are further licensed on the terms under which the original OSS was licensed or the OSS is licensed without any such reciprocal terms. The premise of an OSS is copyright and the protections granted under the copyright law, but the manner of license ensures unrestricted access to the software, its source and object code, with the intention to better the interest of the society by promoting innovation rather than create monopoly through proprietary interests and thereby stifle progress.


The former is referred to as “copyleft” where the owner of the OSS distributes the OSS with the right to use, modify and redistribute the source code and the object code of the OSS in modified form provided the modified version of the OSS i.e., modified source code and object code of the OSS, is freely available and is distributed on the same terms. Essentially, OSS does not relinquish any copyright in the software but provides an inclusive license to whoever is interested in using the OSS.


At the same time, a major concern with OSS licensed under the copyleft mechanism, is the fact that use of OSS with or without a proprietary software could cause such new/bundled software (even if part of it is proprietary in nature) to be automatically licensed under the reciprocal terms thereby invalidating any proprietary in such software. While judicial precedents with respect to OSS are extremely limited in India, reference can be taken from the few judicial precedents that exist in the US. Basis the same, it is important that anyone using an OSS be aware of the terms of the license so as to understand the limitations if any, especially with respect to securing proprietary on any modified version of the OSS or a new software created using such OSS as a part thereof.


Conclusion


It is important for software developers to be aware of the different kinds of protection granted by the applicable laws in India and accordingly, evaluate the best possible protection to be secured. While doing so, in view of the extensive use of OSS, in development of software nowadays, it is advisable that anyone who intends to use an OSS for their commercial benefit either as part of their software or for creating a derivative, is fully aware of the terms of the OSS license and consequences of its use.


While the Indian courts are yet to delve into the question of proprietary over software containing and/or derived from OSS, it is not far from now that challenges could be raised against proprietary claims over such software.


Kindly treat this as an information update and the same shall not constitute as an advisory by the firm.


Optimus Legal

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[1] W.P.(C) 7/2014 and CM APPL. 40736/2019

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