BY Ankit Kumar.
With the rapid changes in the field of information technology taking place across the world, computers are fast becoming an essential property the legal systems have developed as their own responses. The definition and interpretations varies. In some countries, patent protection differs. In Indian context, the Copyright act was amended in 1994 to extend protection to the computer program as literary works. Under the Indian Copyright Act, computer program means 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. Article 2 of the Berne Agreement does not specifically protect the computer software! programmes.
Wipo Copyright Treaty
“Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to Computer programs, whatever may be the mode or form of their expression.” (Article 4)
The Information Technology Act 1957. The definition of computer includes any electronic or similar device having information processing facilities. Infringement in relation to literary, dramatic, musical or artistic work means reproduction thereof in any other form of a cinematograph film.
There are two important elements of a computer program:
- The underlying process and algorithm system. This element can be equated with a process or system that will be able to be protected within the scope of the patent;
- A series of instructions that explain the process in detail. This element is an expression of a series of instructions outlined or writing that is protected by copyright.
CATEGORIES
Software can be divided into different categories, for example: Commercial, shareware, public domain software and freeware software. Commercial softwares are protected through copyright. The users have to buy that software. Shareware software is available at cheaper rates. The software is free for test and trial. Freeware softwares can be easily copied and is open for public. Public Domain Softwares are not copyrightable and so can be easily used without any sort of restrictions.
In case of any work which is computer generated, the author of the work shall be the owner of the copyright. But, if the work is done in the course of employment, then the employer shall be entitled to get the copyright in the absence of any agreement to the contrary.
PROTECTION UNDER INDIAN COPYRIGHT ACT
a. In case of literary, dramatic and musical work(not being a computer program)
i. To reproduce the work in any material form. It includes the storing of it in any medium including electronic means.
ii. To issue the copies of the work to public. It does not include copies already in circulation.
iii. To make any sort of translation of work.
iv. To make adaptation of work.
b. In case of computer program:
i. To do any of the acts specified in clause a as given above.
ii. To sell or give on hire or offer for sale or hire any copy of the computer program, regardless of whether such copy has been sold or given on hire on earlier occasion.
The computer program is given protection just like literary works. It includes tables and compilations including computer databases. So, making the work available to the public by issuing of the copy of the original work by communicating the work to public is also covered in this Act.
LIMITATIONS UNDER THE INDIAN ACT
As per the definition of computer programs under the Copyright Act, Computer Software means set of instructions capable of causing a computer to perform a specific task or work including a machine readable medium. The definition is found to be erroneous. The machine readable medium without set of instructions or guidelines cannot enable a computer to perform a specific task. The correct version required the definition to state words, codes, schemes incorporated into machine readable medium.
APPLICATION RELATED TO COMPUTER INVENTIONS REGARDING PATENT
Application relating to the patentability of computer algorithms falls under following categories:
a) Method / process
b) Apparatus / system
With regard to other countries, the examiners of the Patent have been instructed to look into the following aspects:
i. The method claim must clearly define the steps taken to carry out the inventions. It should have a technical character i.e., it should solve a technical problem.
ii. The apparatus claims should contain the minute details regarding the method of implementation in Hardware or software for better clarity.
We have to consider some of the arguments which are against the patent protection of computer softwares. Some of them are as follows:
- Double protection of software (i.e. copyright + patent) is excessive.
- Software patents are expensive; small inventors and companies are disadvantaged.
- Software patents inhibit competition thereby restricting cumulative innovation, and limit development of open standards for interoperable products and services.
A mathematical method or process is one which is carried out on numbers and provides a result in numerical form (the mathematical algorithm being merely an abstract idea prescribing how to operate on the numbers) are not patentable. However, its application may well be patentable, for example in Vicom / Computer-related invention [1987] 1 OJEPO 14 (T208/84) the invention concerning a mathematical process for the manipulation of data representing an image, leading to an enhanced digital image.
CONCLUSION
Every nation tries to simplify the patent Laws (applicable to that country) towards computer-related discoveries and inventions, based on two factors, “as such” and “technical contribution to the art”. The conflict of interests among different jurisdictions still exists with regarding the patenting of computer programs or softwares. So, what is required is that the global patent system relating to all computer programs or software should be harmonized by all jurisdictions keeping in mind the protection of best interests of inventors, third parties, etc. This is the best way for fighting the problems relating to software patents in all over the world.