Practical and Legal protection of Software and Computer Program/s
Article I wish to discuss both the practical and legal methods of protecting Software and Computer Program/s from unauthorized copying and use.
- Computer Program/s and Software are new forms of Intellectual property and are of growing importance in today’s world.
- IPR (Intellectual Property Rights): protection for Computer Program/s and Software had traditionally been restricted to copy rights.
- Program/s and Software are entitled to be protected under the Copy Right Act as “literary work”. Literary work includes “computer programmes, tables, compilations including computer data-base”
- Section 2(ffc) of The Copy Right Act defines computer program as a set of instructions expressed in words, codes, schemes or any other form, including a machine readable medium capable of causing a Computer to perform a particular task or achieve a particular result.
- Software is easily reproducible since it can be copied cheaply, very fast without loosing on the quality and once copied one language can be converted to another.
- Copyright infringement is fairly easy to get away with since it can always be claimed that the source codes, algorithms etc could be used for different implementations.
- The intentional use of moles of special identities in the Computer Program/s and Software called as “seeds” or “signatures” by the author in a Computer Program/s and Software, when combined with the three main vehicles of of legal protection: copyright, trade secrets and contracts, can create a powerful defense against the “computer pirate”
- The Indian Software Industry, is one of the top most foreign exchange earner for the country and hence it needs to take a closer look and safe guard its market and intellect of its programmers , more so since Commercial benefit that are being derived by this Industry is substantial and the nature of protection that needs to be provided is very important.
There is a greater need for the Software Industry to change its orientation and stress for the protection of its Computer Program/s and Software, for only by doing so there is scope of original product development and the Industry can legally maintain a monopoly in a particular area of competence to the exclusion of the competitors.
Where does India stand on - COPYRIGHTS:
- The TRIPS Agreement, signed and ratified by India in 1996.
- It prescribes certain minimum standards of protection for Copy Right.
- Though the 1994 legislation more than meets the WTO requirement it is felt that the enforcement is weak. The WTO requires that the India Act extend protection to literary, scientific and artistic works.
- In 1999, the Copyright Act was amended with amendments to definition of literary work, computer programmes, increased the term of copyright of performers from 25 to 50 years.
- New provisions have been inserted pertaining to the powers of the Central government to apply the provisions relating to broadcasting organizations and performers in certain other countries, and powers to restrict rights of foreign broadcasting organizations and performers.
What is a COPYRIGHT ?
- Copyright protects the expression of the idea and not the idea itself. Originality requires the author of the specific work to contribute something more than a mere “trivial” variation which is recognizably “his own” and the work should evolve from the intellect of the author.
- The work shall be the result of mental labour and shall not be altered or edited repetition of an already existing work.
- Copyright doctrine envisages , that the work must show some “creativity” in order to meet the originality test and it is not subject to copyright if the work merely copies an existing work.
Why a Computer Program/s and/or Software is hard to legally protect:
- The basic problem in protecting Computer Program/s and Software is that the information compiled is frequently a public knowledge, understandably so since the user has to know how to use it.
- Under traditional concepts of literary copyright, the program contained in a compilation, may sometimes not be protected from copying.
- Only the co-ordination and arrangement of the program may be protected and even then there must be some originality to the collection and arrangement for it to be protected.
Legal Protection currently available:
- Law and the courts in general are struggling to keep up with the rapid changes in technology by passing new enactments, but with considerable delay.
- Different forms of Intellectual property protection can be extended and are appropriate for the individual components in a Program. There are essentially four ways to protect a computer software and program : copy right, patents, trade secrets and contracts.
- Program function can be protected by patents and trade secrets.
- Mostly Copyright protection and to some extent designed patent protection is used for program interface like file formats, Application Program Interface communication protocols and specifications.
- For Program codes copyrights and licensing agreements provide the protection
- Ideally, all four of these legal means can be employed , along with practical non-legal methods, to provide the maximum protection against the piracy of Computer Program/s and Software.
- Indian Copyright law provides the frame work and basic foundation for legal protection by securing for limited time to the authors and inventors the exclusive rights in their respective writings and discoveries.
- Computer Program/s and Software are entitled to be protected under the Copy Right Act as “literary work”. Literary work includes “computer program/s, tables, compilations including computer data-base”
- Section 2(ffc) of The Copy Right Act defines computer program as a set of instructions expressed in words, codes, schemes or any other form, including a machine readable medium capable of causing a Computer to perform a particular task or achieve a particular result. piracy of Computer Program/s and Software.
Trade Secret Protection:
- Trade Secret had long been the favorite protection by the software industry. Most of the software is protected at least to some extent by trade secrets. Adding trade secrecy protection to Computer Program/s and Software can provide significantly a greater legal rights.
- Trade secret is knowledge which a person or company acquires through it own efforts and which has some value to it. This knowledge is kept a secret from competitors because it is felt that this information provides some type of competitive advantage.
- Trade Secret Information, include information regarding a formula, pattern, compilation, program, device, method, technique or process. The information should derive independent economic value , actual or potential, not being generally known to , not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and is the subject of effort that reasonably warrants under the circumstances to maintain its secrecy.
- A Computer Program/s or Software is a compilation which derives economic value, it is intellectual property which has to receive and is eligible for trade secrecy protection. The common legal devise for implementing the principle of trade secret is the non disclosure and secrecy agreement.
- The common legal devise for implementing the principle of trade secret is the non disclosure and secrecy agreement.
- It is a common practice with the Indian Companies to take a declaration or enter into a non disclosure and secrecy agreement with its employees. Once having signed this the employee is obliged to keep as a secret the knowledge gained from his former employment in any future employment more so with a competitor.
Protection by Contract :
- A seller of the Computer Program/s and Software can require that any purchaser enter into a written contract as a condition of purchase of the Computer Program/s and Software.
- The written agreement could expressly provide that the purchaser will not disclose the software/program to any one, restrict the use of the product for himself, not to make any copies of unauthorized use of information. Typically this takes the form of a License Agreement between the preparer/licensor of the Computer Program/s and Software and the user/licensee of the Computer Program/s and Software.
- The licensee merely purchases the right to use the program. The licensee’s right to use the program can be limited in any number of ways.
- Most important limitations typically are that the licensee can only use the program on one or a select number of computers, the licensee may not make any copies of the program, and the licensee has to keep confidential certain information about the Computer Program/s and Software.
Practical protection of Computer Program/s and Software:
- Author of the data base is well advised to try and strengthen his legal hand as much as possible with certain practical protection measures which when employed prevent some one from copying his work, or if they do, to make proof of this copying in a court of Law far easier.
- One method is the deliberate placement of errors or omissions in your Computer Program/s and Software. The placement of deliberate errors and omissions in the program is known as the placement of “seeds” or “Salting” a Computer Program/s and Software. If your competitors Program/s contains the same errors or omissions, then you have pretty good evidence that your program was copied.
- These seeds will provide the best evidence, in a Court of Law, of copying.
- Errors that occur if the database is large enough should be carefully documented and recorded.
- Implanting Computer “signatures” pertaining to the computer code or programming itself are identifiable signs and can be of good evidentiary value. These signatures can be identified by the author as they depict his style of programming. This can be comparable to the style of writing.
- Apart from the above all standard non copying protection can be imposed upon the program itself. This makes it difficult for most users to ever make a copy of the program.
Although copy right protection has become important, due to the role that is being played by the Indian Software Industry nationally and globally, and should almost always be pursued, in any license of a Computer Program/s and Software of significant value, copyright protection alone should not be relied upon to prohibit unauthorized copying. Trade secret protections, non compete and non disclosure agreements and employee generated IP assignment agreements between the vendor and consumer, employer and employee, hirer and the programmer are necessary to protect such database. If, as has already been witnessed and noted, information technology continues to grow in commercial value and importance , then the proliferation of licenses and abovementioned agreements are likely to be preferred and given importance. To make or buy technology, the country needs a strong system of IPR, be it Copyrights, Patents, Trademarks, Designs, etc. If we need to stand on par with developed nations in the world market for IT knowledge, if we need to exploit the substantial revenue generation capacity of such technology, we need to protect ourselves and this is the only way of converting knowledge into wealth.
- Ashok Ram Kumar