Copyright in IT protects the expression of ideas in digital form. Software (computer programs) is protected as a literary work under the Copyright Act, 1957. Copyright protects the code (source and object) but not the underlying idea, algorithm, or functionality.
Legal Framework
| Provision | Subject |
|---|---|
| Copyright Act S.2(ffc) | Definition: "computer programme" means a set of instructions expressed in words, codes, schemes or in any other form including machine-readable medium |
| Copyright Act S.2(o) | "Literary work" includes computer programmes, tables, compilations including computer databases |
| Copyright Act S.14(a)(i) | Exclusive right: reproduction in any material form including electronic storage |
| Copyright Act S.14(b) | Rights in computer programme: right to sell/give on commercial rental |
| Copyright Act S.16 | No copyright except under this Act |
| Copyright Act S.17(c) | Employer as first owner (work during employment) |
| Copyright Act S.52(1)(aa) | Fair dealing exception: making backup copies of computer programme |
| Copyright Act S.52(1)(ab) | Exception: adaptation for personal use with legally obtained copy |
| Copyright Act S.52(1)(ac) | Exception: doing acts necessary for lawful use (including error correction) |
| Copyright Act S.63B | Enhanced penalty for infringement of computer programme copyright |
| TRIPS Art.10 | Computer programs protected as literary works under Berne Convention |
What Copyright Protects in Software
| Protected | Not Protected |
|---|---|
| Source code (human-readable) | Algorithms |
| Object code (machine-readable) | Mathematical formulas |
| Screen displays and user interfaces (if original) | Ideas underlying the program |
| Database structure (if original selection/arrangement) | Programming languages |
| Documentation and manuals | Functionality or method of operation |
| Compilation of data (original arrangement) | Standard programming techniques |
Why: The idea-expression dichotomy (merger doctrine) ensures that copyright protects the specific expression (how code is written) but not the underlying idea (what the code does). This permits multiple programs achieving the same function to coexist legally.
Authorship and Ownership Issues
| Scenario | Owner | Authority |
|---|---|---|
| Employee creates software during employment | Employer (S.17(c)) | First owner automatically |
| Independent contractor creates software | Contractor (unless express assignment) | Must have written assignment |
| Joint development | Joint owners (S.2(z)) | Each can exercise rights with consent of other |
| AI-generated code | Uncertain (no legal person as author) | Debated; likely human who directed AI |
| Open source contribution | Contributor retains copyright; grants license | License terms (GPL, MIT, Apache) govern |
| Work-for-hire (commissioned) | Commissioner only if agreement provides | Must be express written agreement |
Software Piracy
Definition: Unauthorized copying, distribution, or use of copyrighted software.
| Type | Description |
|---|---|
| End-user piracy | Using one licensed copy on multiple computers |
| Counterfeiting | Manufacturing and selling fake copies |
| Online piracy | Distributing cracked software via internet |
| Hard disk loading | Pre-installing unlicensed software by retailers |
| Client-server overuse | Exceeding license limit on network |
Penalty (S.63B): Minimum imprisonment of 7 days, extendable to 3 years; minimum fine of Rs.50,000, extendable to Rs.2 lakhs. Enhanced compared to general copyright infringement (S.63: 6 months to 3 years).
Recall Check
- Under which category is a computer program protected under the Copyright Act?
- What does S.52(1)(aa) permit regarding software copies?
- Why is an algorithm not copyrightable?
Key Cases
Eastern Book Company v. DB Modak (2008) Eastern-Book-Company-v-DB-Modak-2008 Issue: Whether a compilation of judicial decisions with editorial additions (headnotes, paragraph numbers) constitutes original literary work eligible for copyright. Rule: Copyright subsists in compilations only where there is sufficient intellectual creativity in selection, coordination, or arrangement. Mere "sweat of the brow" is insufficient; minimum creativity is required. Held: Supreme Court adopted the "modicum of creativity" test (from US Feist decision). Copy-edited judgments with only minimal changes are not copyrightable; original headnotes with creative input are protected.
Infosys Technologies v. Jupiter Infosys (2011) Infosys-v-Jupiter-Infosys-2011 Issue: Whether use of a well-known software company's name in a domain name and business name constitutes passing off and copyright/trademark infringement. Rule: Well-known trademarks in the IT industry are entitled to broader protection; even use in unrelated services constitutes dilution if the mark has trans-border reputation. Held: Injunction granted. The goodwill in "Infosys" extended across IT services; use by another entity caused confusion and dilution.
Distinctions
| Aspect | Copyright in Software | Patent in Software |
|---|---|---|
| What is protected | Expression (code) | Invention (novel technical process) |
| Duration | Lifetime + 60 years (from author's death) | 20 years from filing |
| Registration required | No (automatic upon creation) | Yes (application, examination, grant) |
| Scope of protection | Against copying of code | Against anyone using the same process |
| Exclusion | Ideas, algorithms, methods | Per se computer programs (S.3(k) Patents Act) |
| Cost | Minimal (voluntary registration Rs.500-5000) | High (filing, prosecution, maintenance fees) |
| International | TRIPS Art.10, Berne Convention | TRIPS Art.27, Paris Convention |
Flashcards
Q: How is a computer program defined under Copyright Act S.2(ffc)? A: A set of instructions expressed in words, codes, schemes, or any other form, including machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result.
Q: Under which section is software classified as literary work? A: S.2(o): "literary work" includes computer programmes, tables, and compilations including computer databases.
Q: What is the enhanced penalty for software piracy under S.63B? A: Minimum 7 days to 3 years imprisonment; minimum Rs.50,000 to Rs.2 lakhs fine.
Q: What fair dealing exceptions exist for lawfully obtained software? A: S.52(1)(aa): backup copies; S.52(1)(ab): adaptation for personal use; S.52(1)(ac): acts necessary for lawful use including error correction.
Q: Who owns copyright in software created by an employee? A: Employer is first owner under S.17(c) (work made in course of employment, absent contrary agreement).
Q: What is the idea-expression dichotomy in software copyright? A: Copyright protects the specific expression (code) but not the underlying idea (algorithm, functionality). Same function can be coded differently by different programmers, each getting independent copyright.
Q: What did Eastern Book Company v. DB Modak establish? A: "Modicum of creativity" test: copyright in compilations requires minimum intellectual creativity in selection or arrangement; mere "sweat of the brow" (labor alone) is insufficient.
Exam Scenario
Company A develops accounting software. Company B reverse-engineers A's object code to understand the algorithm and writes entirely new source code achieving the same functionality. Company A sues for copyright infringement. Advise.
Under the idea-expression dichotomy, copyright protects Company A's specific code (source and object code) but NOT the underlying algorithm or functionality. If Company B wrote entirely new code from scratch that merely achieves the same result, there is no infringement because only the idea was copied, not the expression. However, if reverse engineering involved copying object code (even temporarily into RAM), this may constitute reproduction under S.14(a)(i). S.52(1)(ac) permits acts "necessary for lawful use" including error correction, but reverse engineering for commercial competition may not qualify. The court must examine: (1) Did B copy any substantial portion of A's code? (2) Is there non-literal copying (structure, sequence, organization)? If only the idea was taken and independently expressed, no infringement exists (Baker v. Selden principle applied to software).