Code, Click, and Claim: Battles of Computer Programmer and Intellectual Property

Code, Click, and Claim: Battles of Computer Programmer and Intellectual Property

Abstract

Discussing the legal framework for protecting software intellectual property in India, we learn copyright law, patent law, trade secrets, and trademark law as an application to software. We will also discuss the emerging issue of AI and its implications for software IP protection.

Introduction

India and its transformational journey in the era of software and IP protection has been very dynamic. It is very clear that even though India was a newborn as an industry, it is now among the most significant global software industries. It is and remains progressive; there are many issues under dispute unresolved, which includes the implementation of the provisions of the copyright protection and the qualification of patents to software. Solutions based on artificial intelligence, machine learning, and blockchain technologies are both possibilities and threats. For example, use of AI in writing codes attracts issues of ownership and even copyright. While India pushes to become an overheated economy, it remains decisive for coping with these issues and adopting the unique technologies for safeguarding the software IP and propelling the advanced digital environment.

Copyright Law and Software

Source Code and Object Code

Basically, a computer program is a sequence of recognizable directions or operations that can be complied by a computer. These instructions are expressed in two primary forms:

• Source Code: This is a form of what programmers write, which is normally in a programming language. It is independent work which has been developed by a programmer.
• Object Code: This is the form of the program which is prepared after compiling the source code to its executable one. It is a binary number that the computer does to perform a task without any interpretation by the operating system.

As per the Indian Copyright Act, 1957[1] both source code and object code fall in literary works category. This means that once created in fixed medium, they benefit from the protection of copyright laws and absolutely no registration is required.

Derivative Works

A derivative work is something driven from more than one work. In the context of software, this could include:

• Modifications: Improvements done on the original source code to enhance functionality and to remove glitches within a Mud.
• Adaptations: Porting of the software to another language or to another operating system.
• Compilations: Set of modules or programs or collections of related products or applications.

Reverse Engineering

Reverse engineering refers to the act of taking a product to decompose in order to derive some specific characteristics such as design features. In the case of software, it means decomposing the programs in order to analyse the source code underpinning the object code. Currently Indian Copyright Act specifically permits reverse engineering except to a certain extent for reasons relating to security and protection of the intellectual property right of the owner.

Patentability of Software in India

Before the new legislation was passed, India had been relatively conservative on software patenting. The Indian Patents Act 1970[2] in the first instance did not provide for protection of computer program per se. But in 2005 and 2014 new amendments were made to the Act which has added new shades and versatility to the patents of the software. It is also important to note that although stand-alone software programs remain in a general rule non-patentable, software-implemented inventions making a technical contribution over the execution of a mathematical algorithm or a business method are functional for patent protection. This means that if software-based invention can offer a technical solution to a technical question, this invention may be patented.

Domestic Patent Eligibility Standards for Software To be eligible for a patent in India, a software-related invention must meet the following criteria:

1. Novelty: In this our invention must be novel and must not have been described or claimed in any other publications or patents before the date of filing of this patent application. Public disclosures, prior use or prior filings all can affects novelty.
2. Inventive Step: The invention must have an inventive step that is, it must not be an obvious thing to anybody who is learned in that specific area. In essence, an invention should provide a technological improvement that is not immediately discernible by a skilled person to solve a technological question.
3. Industrial Applicability: The invention should be capable of being made or used in an industry or as otherwise defined by regions having adopted the Paris convention.

Challenges and Considerations

Several challenges and considerations arise in the realm of software patenting:

• Subjectivity in Interpretation: An understanding of terms such as technical contribution and inventive step may not be easily defined and can be rather vague, which creates a lot of ambiguities.
• Global Harmonization: This is an important factor for consideration because there is no overall harmonization of the software patent laws around the world.
• Balancing Innovation and Competition: As previous sections have illustrated all to well, strong IP protection can both promote innovation and act as a bigger wall to the advance of competitors and hinder fresh technological developments.
• Patent Thickets: When there are too many patents of software, there are likely to be patent thickets which pose problems to innovation.

Trade Secrets and Software in India

Defining Trade Secrets

Trade secret means any information belonging to a business entity that gives him competitive edge against the competitors. Typically, there may be source codes, algorithms used in software development, the company’s business methodologies or the list of the company’s customers and the marketing strategies that the company adopts. To qualify as a trade secret, the information must meet certain criteria:

1. Secrecy: The information must NOT be released to the third parties.
2. Economic Value: Most importantly, the information has to be capable of offering value, measured in terms of revenue, whether now or in the future.
3. Reasonable Efforts to Maintain Secrecy: The owner has to take reasonable steps to guarantee the security of information for instance, the owner has to guarantee security on the information and anyone who applies with the firm has to enter into a nondisclosure policy.

Trademark Law and Software

While software itself cannot be directly trademarked, certain elements of software can be protected under trademark law:

• Brand Names
• Logos
• User Interfaces

To protect such a trademark, these software firms may be required to sue anybody that executes a trademark that belongs to the company. This may include:

• Trademark Infringement: The unlawful employment of a trademark by another person or company.
• Trademark Dilution: By adopting the blended trademark that reduces the legal protection of the original trademark is applied.

International IP Protection for Software

Protection of software IP rights which cross national borders is well described by international treaties and conventions. Two of the most significant treaties in this regard are:

• Berne Convention for the Protection of Literary and Artistic Works: By this convention there are prescribed minimum standards of copyright protection for literary and artistic works embrace computer programs. It guarantees that authors of software shall have their works accorded copyright protection in all the member countries as soon as they create the software, without having to register for it.
• TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights): This agreement establishes the measures that have to be taken in order to protect different types of the intellectual property, such as copyright and neighbouring rights, patents, industrial designs, trademarks, geographical indications and expressions. It also deals with enforcement, remedies, and dispute settlement, questions, and technology transfer questions that are important in protecting software IP globally.

Open-Source Software and IP Rights

There are different types of the licenses available for OSS, which was developed and distributed with purpose to protect the interest of both developers and users. Some of the most common open-source licenses include:

• GPL (GNU General Public License): This license has the condition that any further changes or any creation of a new work based on the software can only be distributed under this license.
• MIT License: Despite a limited naming, users are free to make copies of the software, modify it and even use it for commercial purposes.
• Apache License: This license is almost the same to MIT License but it has additional provisions about license for patents.

Open-source communities play a crucial role in developing and distributing software by:

• Collaborative Development:
• Peer Review and Quality Assurance:
• Rapid Innovation deployment.
• Knowledge Sharing

Artificial Intelligence-Machine Learning

The recent developments of artificial intelligence (AI) and machine learning (ML) offered new opportunities for development but raised considerable legal issues concerning the intellectual property rights (IPR). With the advancement in implementation of AI technology, it may produce unique works and or codes in form of a software, music’s or artwork that attracts IP protection.

Key IP Issues in AI and ML:

• Authorship and Ownership: It is believed that libertarian policies favouring privatisation are the most suitable approach to take when it comes to solving the question of the ownership of an AI-generated work. Is it the AI itself, which programmers it, or the owner of the AI system?
• Patentability: The question of whether or not machine learning algorithms are patentable is a highly discussed issue.
• Trade Secrets: Therefore, AI models and training data are believed to be highly important trade secrets; however, they are in the digital age where they should be protected properly.

Case laws:

1. Infosys Technologies Ltd., Civil Appeal No. of 2008, Decision of P.N. Bhagwati, June 5, 2009, < Infosys Technologies Ltd. v. Mphasis BFL Communications Ltd.

Software piracy and trade secrets theft of software source code.

Legal Implications: This case demonstrates the need to safeguard software IP, particularly source code, usually regarded as the main part of a software product. Quite strikingly, it underscores the significance of the special protective contractual provisions, including non-disclosure provisions, for the protection of the information.

1. Tata Consultancy Services Limited APRIL | MAY 2009 TATA CONSULTANCY SERVICES LIMITED : TATA CONSULTANCY SERVICES LTD. VERSUS HCL TECHNOLOGIES LTD.

Important contemporary issues such as patentability of software implemented inventions. A key message of this case then remains the necessity to establish and highlight the technical features of a software invention to satisfy the patent law requirements. This raises the issue of the technical specification of the invention, as well as the need for preparation of strong and concise patent application.

1. Wipro Ltd India vs Cognizant Technology Solutions India Pvt Ltd.- India

Misuse and passing off trade secrets Information on trade secrets and how they are exploited by competitors Trade secrets and how trade secrets are exploited by competitors.

Conclusion:

There is considerable overlap between copyright and software in India and the area is still evolving. Even though, with the help of copyright we have strong protection in such an object as source code and object code, there are a number of issues such as the issue of derivative works, reverse engineering or the issue of software patentability. It is still debateable how India can protect itself from vagueness in the law and from the id the appeal of software. Unfortunately, the law is still not completely clear about the software. The legal principles have grown across the Indian jurisdictional territory in order to address the modification of arbitral contentiousness. We do not doubt that as technology progresses further in future through AI incorporation and blockchain, other novel legal issues will emerge in software IP protection as well as change its direction entirely. Thus, the principles of the phenomenon and the certain peculiarities of its development depending on the current state of information technologies allow knowing the specificity of copyright protection in the context of furthering the intellectual property of software developers and businesses.

[1] THE COPYRIGHT ACT, 1957 (14 OF 1957). (2023). copyrights.gov. Retrieved December 3, 2024, from https://www.copyright.gov.in/Documents/Copyrightrules1957.pdf

[2] THE PATENTS ACT, 1970. (2015, November 3). ipindia.gov. Retrieved December 3, 2024, from https://ipindia.gov.in/writereaddata/portal/ipoact/1_31_1_patent-act-1970-11march2015.pdf