Netra Vasudevan and Arya Kumar
It is a fact that the advent of the information age and the digital era has opened up no dearth of intellectual possibilities related to the realm of software innovation and virtual communications. New and potentially transformative advances in technology are being dished out almost every week, with individuals and companies scrambling to find new ways to bolster democratic dialogues and better governance, improve the accessibility to teaching and learning, come up with less time-consuming means of organizing information and compute data, and even turn the internet into a bustling marketplace.[i] Owing to the time, labor, and investment of resources that go into such creations, it becomes pertinent to award some sort of intellectual property protection to computer programs in order to ensure that other entities do not take undue advantage of someone’s work.
In India, the law of copyright[ii], with the enactment of the Copyright Act of 1957[iii], works with the intention of protecting an author’s economic[iv] and moral rights[v] to the creative expression of his work. With the goal to extend this to computer programs in order to protect one’s ideas and curb wrongdoers from commercially exploiting someone’s software innovation, Rule 70(5) of the Copyright Rules, 2013 was a nod to the copyrightability of computer programs, adding that a source code and an object code must accompany an application for registering a copyright in software.
Software innovations may also be protected under patent[vi] law which, unlike copyright which governs how an idea is expressed, protects inventions. The main shortcoming of copyright when it comes to protecting software is how it would only govern how an idea is expressed, and not the idea itself. This would make software patents more desirable as it would protect the code as a whole, unlike copyright, which cannot protect the idea behind a code, and means that anybody who utilizes the same idea but arranges it differently could slip under the radar. Even though computer programs do not directly qualify for a patent per say, they can still be eligible for patent protection if they fulfill the essential pre-requisites[vii] of novelty, inventiveness, and industrial application. Why is it more difficult for software patents to pass the criteria required to obtain a patent? One reason could be that it can be very difficult to prove the inventive step used in the development of a software when the same process can be done by a human brain alone. The fact that a software has attempted to virtually emulate a particular action or a process that humans do in real life often lands it in a difficult position when it comes to passing the patent check. Another challenge also lies in displaying how exactly the software in question is more efficient, different, or significantly better than its already existing technological counterparts.[viii]
IP and Software- Steeped in Controversy
However, these approaches towards protecting software have not been entirely unproblematic, nor have they been met with unanimous approval. Take the example of program codes. They readily fall under the subject-matter eligible for copyright protection, as they are an expression of an idea in a tangible form, they are original, and they involve a degree of creativity that is necessary to warrant intellectual property protection. However, a traditionalist mindset would entail the stance that extending copyright to such functional components would be inconsistent with the legislators’ true intention behind applying the principles of copyright law to computer programs. To such a person, any aspect of a program that bears on its functionality, such as algorithms[ix], structural abstractions that act as the fundamental elements of any process, technique or system contained in a program, or the de-compilation of interface information should never qualify for copyright protection.[x] This is simply because, by allowing such elements to be copyrighted, one would essentially be feeding into a culture that would allow the protection of important know-how for a very long time. This would be counterproductive, because information regarding software can only maintain its relevance for as long as the technology is still in use. Not promoting the dissemination of such information would thus beat the traditional purpose for which the law of copyright was formulated in the first place. On the flip side, protectionists advocate that strong copyright protection must be awarded to those who wish to protect the valuable features of their programs, and maximize their financial returns in the process. They regard traditionalists as an unnecessarily sentimental group who fail to acknowledge that the only thing that matters at the end of the day, is for software innovation to receive the adequate copyright protection it needs for the industry to thrive. [xi]
But a few traditionalists have favored software patents over copyright, acknowledging that it is actually important to offer some sort of protection to valuable functional elements of programs in order to incentivize innovation in the field. Supporters assert that the law of patents contains a lot of hidden potential with regard to promoting progress and technological strides in the software industry, and refute those who attack it, on the ground that patents are a necessary ally to offer the industry an incentive to invest heavily in software development. [xii]Opponents however, generally question whether one would actually be promoting innovation in the field if patents end up being too easily available for software developments.[xiii] On a somewhat different note, a few others also argue that the proof is in the pudding- if the software industry could have grown on such a massive scale without the aid of patents, on what basis could one claim its significance in encouraging innovation?[xiv] Patents are highly exclusionary, and often end up fettering the scope of reinvention in the field. Obtaining a patent is also a rather expensive affair, which would increase the entry barriers for smaller firms within the industry. Since most of the innovation in the software industry can be credited to smaller companies[xv], patents could end up being counterproductive towards the goal of promoting innovation.
The Road Ahead- Challenges in the Future
Even though most of the aforementioned challenges surrounding the existing IP laws to protect software innovations might seem exhaustive, it is absolutely essential to understand some of the problems that could possibly arise in the future in the midst of developing holistic solutions to plug the leaks in the present. Adopting such a forward mindset would allow one to successfully map the landscape of legal pitfalls that could easily be solved right at its very root.
One such potential problem would be the development of highly advanced software systems. The existing legal system has made it extremely difficult and increasingly impossible for the judiciary to effectively resolve even simple disputes regarding software rights. This is not a good sign, as it does not bode well for how judges would likely address much more complex problems that advanced software would present in the future. This issue arises mainly from the judges’ lack of knowledge regarding the technicalities of software, and from the lack of suitable precedents from where an effective resolution could be drawn. This would require the incorporation of specially trained judges to hear software related disputes. It could also be very difficult to properly extend traditional copyright law to some extremely advanced softwares.
The proliferation of the digital era could also warrant a revamp of the existing system of intellectual property. Considering how easily works can be copied, redistributed or disseminated digitally, it could be more feasible to allow people to commercialize their work by controlling how such digital media could be used, rather than simply have control over the manufacture and distribution of its copies, which is the extent of protection that traditional copyright law offers.
Last but not the least, with millions of people connected via computer networks, it becomes increasingly important to lay down the boundaries regarding the ‘fair use’[xvi] of copyrighted content, owing to the widespread belief among most people who communicate over the internet and distribute such content for non-commercial purposes, that their actions would fall under fair use.
Conclusion Even though there are a number of reasons that tilt the scales against the widespread acceptance of patents and copyrights for software innovations, the global consensus still favours the use of intellectual property rights to protect computer programs and software. This is mainly because creating an entirely new legislation to govern this industry would still present itself with a host of other problems that would dilute its significance. Instead, a more effective solution could be reached by trying to plug the leaks in the existing system and ensure that a comprehensive intellectual property system is developed that could adequately address all the issues at hand, without it being cumbersome, complicated or confusing.
[ii] Will Kenton, Copyright, https://www.investopedia.com/terms/c/copyright.asp.
[iii] The Copyright Act, (1957).
[iv] Copyright as an Economic Right, https://www.jasrac.or.jp/ejhp/copyright/property.html.
[vii] Conditions for a patent, https://www.prv.se/en/patents/applying-for-a-patent/before-the-application/conditions-for-a-patent/.
[ix] What is an algorithm? An ‘in a nutshell’ explanation, https://www.thinkautomation.com/eli5/what-is-an-algorithm-an-in-a-nutshell-explanation/.
[xii] National Research Council 1993. Global Dimensions of Intellectual Property Rights in Science and Technology. Washington, DC: The National Academies.
[xvi] What is fair use, https://copyrightalliance.org/faqs/what-is-fair-use/.