Computer Software: Questions and Answers

What is Computer Software ?

Computer software is a computer program which carries out certain logical operations (algorithm) not only to solve complex mathematical problems but also do things swiftly which a human being may take long to do and may make mistakes in doing so (like train or air reservations) and run machines on command from the computer.

What is a Computer Program?

Computer program is defined as a set of works expressed in words, codes, schemes or any other form including a machine readable medium capable of causing computer to perform a particular task or achieve a particular result.

Is Computer Software Patentable?

Computer software has generally been thought to be non-patentable on the same analogy as non-patentability of mathematical equations and calculations and methods.

How is that there are about 3,500 patents granted for Software in USA?

In USA, patent based on computer program is allowed when technical effects are produced by the operation of the program. Such patent does not extend any protection to the computer program itself.

What type of protection is conferred on computer software?

Copyright law is the main vehicle for the protection of computer programs and other items of computer software. The most modern US copyright law specific to computer software is US Computer Software Copyright Act of 1980. The US was the first country to enact specific legislation directed towards copyright protection of computer software. However, some industrially advanced countries are contemplating patent type protection even in the case of computer software copyright, which also allows a larger period of protection than the patent law allows.

In India, computer program received statutory recognition as a `literary work' in 1984 and the definition has been amended and made more specific and precise in the Copyright Amendment Act of 1994. In fact, India was

one of the first countries in the world to provide statutory protection to computer software. U.K, Germany, Australia and Japan provided it in 1985, France in 1986, Indonesia, Malaysia, Singapore and Taiwan in 1987 and Hong Kong in 1988. A computer program is therefore dealt with a literary work and the law and practice in relation to literary works will apply to computer programs.

The protection in a work depends on whether the work is original and involves skill and judgement which is more than mere labour.

Is Registration Mandatory?

Unlike other branches of intellectual property, copyright vests in an original work as soon as it is created. Registration is not mandatory but may be useful where disputes may arise to the date of the creation of the work.

Is Renewal of Registration Required?

No renewal of registration is required. Registration is weighed by the courts and it is much easier to obtain interim relief in the form of injunction if the work is registered.

What is the Duration of Protection?

Though computer programs become absolute with much shorter time, the duration of copyright is 60 years from the date of death of the author or the last surviving author in case of joint authorship. The owner of a copyright has the exclusive right against the copying of work, issue of copies to public, making an adaptation of the work.

What are parallel rights?

Under the Copyright Law, independently created original works, whether registered or not, are protected. Thus, even if two persons arrive at the same program by the same route independently, both are entitled to copyright.

What are the international arrangements for protection of right of authors?

The Universal Copyright Convention and the Berne Convention provide for national treatment that is to say, except where specifically stated otherwise, a country must give the same treatment to other country's material as it gives to its own. All major industrialized countries are members of convention, India is also a party to these conventions.

Is it necessary to deposit accompanying documents of the computer program for which copyright is being sought?

Documentation which normally accompanies the program is regarded as separate work and for this reason if the same has to be registered, it must be separately registered and not combined with the computer program in a single application.

If an employee/employees in a company develop a program, do they own the copyright?

No, in the case of a program made in the course of author's employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright.

If an independent third party develops a program for a company, who owns the copyright ?

Works created by third parties on commission do not automatically vest the copyright in the commissioning party. If the third party is an independent contractor it is essential for the commissioning party to obtain the copyright through a written deed of assignment. It is a common misconception that the copyright automatically belongs to the commissioning party. Thus, it is only where the developer is an employee creating the work under a contract of service that the rights belong to the employer.

What is the rule for the transfer of copyright?

The owner of the copyright in an existing work or prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially in the following manner: (i) for the entire world or for a specific country or territory; or (ii) for the full term of copyright or part there of; or (iii) relating to all the rights comprising the copyright or only part of such rights.

Can the work stored in computer memory be protected by copyright?

Storage or recording of computer program is essential. A work whose only form of existence is the computer's RAM is not protected by copyright. At that stage therefore a third party can take a copy without infringing copyright. This is more relevant in respect of computers which can be accessed by others and copy taken from another location, even as the work is created.

How is infringement defined concerning computer software?

The copyright in a computer program is infringed when the copies are made of the whole or a substantial part of the program of the copyright. A common example is an employee's computer programmer leaving the job and writing an another program which bears a striking resemblance to the one which he wrote for the previous employer. This is not permissible unless the employee demonstrates that he did not copy the original program or a substantial part of it. Substantial part always does not mean the major part in terms of size but means the theme or crux of the work.

In the software copyright what are permitted acts, restricted acts and unauthorised erasure?

Certain acts which do not amount to infringement are fair dealing, educational use, literary and archival use, for public administration and other research work.

Making an adaptation, i.e. where a computer program is rewritten in another programming language, is a restricted act, e.g. rewriting in BASIC a program origally written in COBOL is an adaptation and act restricted by copyright.

Deliberate erasure or modification of computer program or data is an offence.

Since software piracy has become a multi-million dollar issue, how much would be approximate annual loss of the software industry due to international software piracy?

The revenue loss of software industry owing to piracy is estimated at $10 to 12 billion.

What exactly was the Windows 95 piracy?

The official launch of Windows 95 was scheduled to take place on 24 August 1995 with a US$1 billion advertising compaign. A week earlier, it was discovered that about 50,000 illicit copies of the software were in circulation in the Netherlands and Belgium. The programs were offered for sale on CD-ROM discs at F165 (US$39), or one-third of the official price.

What is the software piracy rate in India?

The National Association of Software and Service Companies conducted a baseline survey in 1995. This revealed that India still has a 63% piracy rate in software.

— J. Intellec. Prop. Rights, Sept., 1997

IBM Puts Database of Two Million US Patents on the Web.

The International Business Machines (IBM) has launched a new patent server site that allows web users to search and retrieve information free of charge, on patents granted since 1971. Free access to such comprehensive patent information is expected to hasten the pace of innovation across the board, as inventors can more easily find and improve upon or license—rather than inadvertently duplicating—inventions that have already been made.

IBM's Patent Server Web Site uses many open-system technologies. When all of the images are loaded into the system, some 1.2 trillion bytes of patent data will reside on about 2800 CD-ROMs made by optipat from the official public information files of the US Patent & Trademark Office.

The world wide web queries are managed by IBM Rs/6000 SP super computers. The selected content is delivered to users via IBM's Advantis network.

— AIS Tech News Vol 8, No.2 1997

New Pricing Policy for European Patent Information

The Administrative Council of the European Patent Office (EPO) has recently decided that the EPO will cease claiming royalties for the commercial use of EPO data and that all patent information products and services will be sold at marginal cost. Moreover, national offices of the EPO's members states will receive data free of charge.

This decision is part of the overall patent information policy review that is currently being carried out by the EPO. The move away from royalties and towards the principle of marginal costs will reinforce the objectives of the European patent information policy as laid down in 1988.

The new approach is expected to :

• promote the free flow of information

• improve the dissemination of patent information

• benefit end-users through the reduction in the cost of EPO data provided to the commercial sector.

— Tech Monitor Sept-Oct., 1997

Database of Patent Applications filed in India

Patent Facilitation Cell (PFC), set up by Technology Information Forecasting and Assessment Council (TIFAC), Department of Science & Technology. PFC has developed  a database on patent applications filed in India since 1995. It has received requests from some agencies to supply the data on applications filed in their areas of interest. PFC will soon start this service on charge basis. The data provided by PFC will contain: (i) application number allotted by the concerned patent office, (ii) date of filing, (iii) title of application and (iv) name of applicant.

Interested industries and agencies may write to:

Patent Facilitation Cell, TIFAC
Department of Science and Technology
Technology Bhawan
Nw Delhi-110016.

Patent Database Planned for Internet

Japan's Patent Office has been rushing to complete a database of patents for publication on the Internet. It will include information for buying and selling patents, including license fees, terms and availability of technological instruction. The move is in line with the office's policy to use patent rights to improve industrial competitiveness, as the US has been doing since the mid 1980s. The government agency urges corporations to look at patents as tools for exploring new markets, rather than as competitive measures against rival companies. The office hopes the free service will help make it easier to buy and sell patent rights and entrepreneurs find useful dormant patents. A dormant patent is one for which a product has yet to be developed. Interested parties will be able to provide information for the database, which is expected to be available in Japanese starting in October, 1997. An English version is planned for 1998.

Source : Dr. VT Chitnis , Counsellor (S &T), Embassy of India, Tokyo

International Patent Classifications on CD-ROM

International Patent Classifications (IPC) are now available on CD-ROM. IPC, used for patents utility models and utility certificates, is an effective search tool for accessing these documents. Search results can be uploaded directly to online databases or databases on CD-ROM. Both the DOS and Windows versions are available. This database covers all editions of the IPC from 1970 including the sixth edition, which is valid from January 1, 1995 to December 31, 1999.

For more information contact :

Informatics India Pvt. Ltd., CD-ROM Division
337, 3rd Floor, `Karuna Complex'
Sampige Road, Malleswaram
Bangalore 560 003.