Introduction:
A set of instruction is fed in computer to get the desired result is known as software. In other words, when the designed or arranged programs or command is fed in computer to perform a particular task it is termed as software. In all part of the world, the software is virtually affecting human life as it is pervasive. It is a product of human intellect and can be duly termed as Intellectual Property. Since the industrial revolution, there was no change in software development but over the last decade, it was one who represents the change. In today’s world of economy and development, it plays a pivotal role and is considered as a crucial issue. Copyright laws provide protection only to the expression of idea or form of the idea, not the idea itself.
In recent years, the market has been greatly affected due to the increase in piracy. An opportunity is provided to violate copyright law with the emergence of digital technologies on a larger scale than it ever was. Intellectual property rights do not only cover the protection of software but also a myriad of issues concerning the digital distribution of creative content in which software plays a vital role. Three different sets of right come under the ambit of Intellectual Property Right: copyright, patent and trademark. The demand for protection of software has been increasing worldwide. The Trade-Related aspects of Intellectual Property (“TRIPS”), Berne Convention, and World Intellectual Property Organization (“WIPO”) have provisions in respect of software protection.
International Instrument
Software is merchandised through a traditional channel or distribution channel. Retailer, e- retailer etc will come under the ambit of traditional channel and distribution through the website with a “click-wrap” license agreement comes under the ambit of distribution channel. The akin arrangement leaves a lot of place for the unauthorized copying of software. To include software, most of the countries have modified their copyright law. Following are the disparate of an international instrument for software protection:
TRIPS Agreement
Trade Related Aspects of Intellectual Property Rights (TRIPS) is the first international treaty which unambiguously includes computer program within its ambit of copyrighted works. According to TRIPS, there is three forms of software protection: copyright, patent and trade secret regime. Provisions of TRIPS are rigorous and extensive in its characteristics. There are provisions which express that computer software are included in the copyrighted work of TRIPS.
Article 27.1 states that as long as the invention which needs the patent protection satisfies the other requirement of patentability of that country, the patent protection will be given to such software. Article 39 of TRIPS talks about the protection provided to undisclosed information and also offer software protection to trade secret regime. It provides an alternative to copyright protection. Article 10 states that protection will be provided under the Berne Convention to computer programs whether they are in source or object code. A commitment to transparency and adopting the multilateral constraints of non-discrimination are the conditions of General Agreement on Tariffs and Trade which is also followed by TRIPS.
Berne Convention
From 5th December 1887, Berene Convention came into force and become the basis to form the international instrument for the protection of intellectual property rights. In its copyright works the Berne Convention does not explicitly mention the computer programs, unlike TRIPS. It covers the work and right of the author and also protects them. There are three principles on which the convention is based, firstly contracting state where the work of the author is originated and protected, such work must be given same protection in other contracting states. Secondly, the condition should not be thereupon compliance with any formality in respect of protection. In the country where the work is originated, the existence of protection there shall be independent.
Article 2 (7) of the convention states that protection of the applied art solely depends on the domestic legislation. In other words the extent of the protection and condition on which such protection depends upon the statute of the particular country where the work is originated. Article 7 (4) of the Berne Convention states that exemption is granted to the applied art and minimum term of only 25 years was set up.
WIPO Copyright Treaty
Under the Berne Convention the World Intellectual Property Organization (WIPO) Copyright Treaty is a special agreement. In a digital environment, the WIPO Copyright Treaty protects the work and rights of its author. In 1970 the legal protection of computer programs was started by the WIPO from there only the emergence of the idea of sui generis was started. Article 4 of the treaty states that literary works covered within the meaning of Article 2 of the Berne Convention are protected as computer programs because the treaty does not define the term software program. The image generated on screen through a computer program is not included in the WIPO according to article 4. Article 6 to article 8 provides the author with the right of distribution, right of rental, right of communication to the public under this treaty.
International Trends
The United States of America
In 1908, the first issue related to software protection was seen in the United States. In the case of White-Smith Music v. Apollo Company[1] where an action was brought against the salesman for two musical compositions to restrain the infringement of copyright. Here the main issue did the copyright protection include composers of music. It was held by the US supreme court that the musical rolls do not come under the Copyright Act as musical rolls were the part of the machine and while operating the machine it produces a tone which was not copies. But after this, in 1980 an amendment was made which include the protection for software in its provision. Two rights were given to the owner of the software under the new amendment. Firstly, right to copy or for use adopt the program and secondly right to have the backup copies of such software. According to the current Copyright Act the owner of software is given three rights which are: the distribution right, the reproduction right, and the adaptation right.
The United Kingdom of Great Britain
Degree of creativity is necessary to protect the software under UK laws. A computer program is a literary work which was specified in the old Copyright Amendment Act of 1985. Protection of software is done by two means which are copyright and patent. The criminal remedy is enhanced under the new amendment of the Copyright Act of 1956 in respect of piracy. Punishment of 2 years of imprisonment and unlimited fines can be imposed on the accused. Work of author under copyright protection lasts for the period until the author’s life with an additional period of seventy years. Patent protection is provided with less than twenty years.
India
In India protection to software is given under the Copyright Act, 1957 and the Patents Act, 1970. Like the UK, in India also creativity is necessary in respect of the protection of software in India. If it has a technical effect then the software is protected under the Patents Act, 1970 otherwise it will come under the purview of the Copyright Act, 1957. According to section 2 (o) of the Copyright Act, 1957 define literary work in which computer programs, tables and compilations including computer databases is also included.
Conclusion
In India protection of computer software has undoubtedly covered under the copyright law but to come under the ambit of patent law in respect of the protection of software is still remains a nascent stage. As the strength of protection offered by patent law is much higher than that offered by copyright law it would be in greater interest if attempts are made in this direction.
Reference:
[1] 209 U.S. 1 (1907)
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