1 May 2015CopyrightMahua Roy Chowdhury

Prosecuting software infringement in India

In the digital era, every country is witnessing increasing litigation over software infringement. But are our civil courts and even litigators prepared to handle such complex cases and analysis? Many countries have been able to set up special intellectual property courts and may have the privilege of having a judiciary and attorneys with expertise in software.

But many other countries have yet to achieve this. Further, most jurisdictions do not allow software or algorithms to be patented per se. Therefore, only copyright can then be enforced, that is without any ‘claims’ (metes and bounds as provided in a patent), and it is analysed only as ‘literary language’. In this context, content owners and right owners face greater challenges in enforcing their rights in an ordinary civil court.

With no precedent in India, we will analyse how courts in the UK and US have taken different approaches and whether the same can be applied in Indian courts.

The UK position

One recent (2013) judgment is SAS Institute v World Programming, which affirmed the factors laid down in Navitaire v EasyJet and Bulletproof Technologies. The English Court of Appeal upheld that the functionality of software cannot be protected by copyright. Functionality constitutes the idea of the programmer, whereas the source code is the expression of the idea used to achieve the functionality.

The overall functionality in the Navitaire case is: check flight-check availability of seats-reserve-take passengers’ details-take payment details-record transaction. These are common to a flight reservation system and constitute core functions of the system. The problem, if one is to arrive at a finding of infringement, is to settle on a level of abstraction that describes something that is not merely inherent in the nature of the business function to be performed by the software, but represents the skill and labour of the designers and programmers and goes wider than the details of the command set and the screen displays, and is taken by the defendants.

‘Access’ was also considered an important factor by the court and the facts surrounding it were considered significant. The court observed that where a programmer has observed, tested and formulated software that is similar to the infringed software, in the absence of any access to the original source code it may not be considered an infringement of software.

The significance is that the software industry cannot provide a single entity with a monopoly over software’s functionality. So, while providing a wider space to developers, it has restricted the subject matter in software that may be protected by copyright.

Looking at flow charts

The way that flow charts (diagrams) and codes used in screenshots were simplified and presented in court is a lesson litigators can take from this case; it is important to discuss the approach taken in this case to reach the conclusion.

The court analysed the flow chart of the functional components of the plaintiff’s system and the system associated with it: a diagram of the software modules making up the software. The court further analysed in detail the user interfaces and the codes defining such an interface with and without internet. The user interface was divided into four parts—four classes of relevant copyright works represented by the user command codes. This included analysing the layouts of the particular screens, the flight fares and flight scheduling interface and the codes used.

The ruling in SAS simply affirmed that the actual framework or the source code of a software can be protected by copyright. In the Navitaire case, copyright infringement was claimed for the alleged “non-textual” copying of software by EasyJet. Non-textual copying refers to the adoption of the look and feel of the software.

"The source code of the software was not available to the defendants, giving rise to the claim of infringement by way of non-textual copying."

In this particular case, the source code of the software was not available to the defendants, giving rise to the claim of infringement by way of non-textual copying. However, the court observed that certain components of graphical user interfaces may come within the scope of copyright protection if it has been proved to be original in nature. In the event it can be established that a lot of creativity has been spent on creating original graphical user interface elements, it can help in claiming damages for infringement.

So, the position in the UK is that software infringement claims would stand to be successful in court in the event of strict copying of the source code or the object code of the software in hand.

The US position

In the US, computer software is considered within the ambit of literal works. The courts in the US have formulated various tests for determining software infringement. Such tests may be analysed to understand the possible components that fall outside copyright protection.

In Computer Associates v Altai, the US Court of Appeals for the Second Circuit ruled out that copyright protection awarded to software is related to the literal as well as non-literal elements of the program such as sequence, structure and organisation, as had been adopted by the third circuit.

The court formulated the ‘Altai test’, which uses an abstraction-filtration-comparison test to distinguish between the protected elements. The process requires the court to analyse different increasing levels of abstraction of the program. Further, at each level of abstraction, the material that is not copyrighted is filtered out. The final step involves comparing the defendant’s program with the plaintiff’s, looking only at the copyright-protected elements and determining if the work has been copied.

In view of the Altai test, in order to have a successful claim for software infringement in the US, a software infringement case should ideally rest on the main subject matter of copyright protection within the software rather than the components that fall outside the ambit of copyright protection, such as process, system and method of operation.

However, factors such as access are important for determining software infringement in both the US and UK. Therefore copyright infringement is likely to have occurred where there was access to the original software and its codes.

The Indian position

Computer programs are included within the ambit of literal works under the Indian Copyright Act, 1957. Article 10 of the TRIPS Agreement expressly provides that computer programs, whether their source code or object code, shall be protected as literary works under the Berne Convention. India, as a member of the convention, has adopted this rule.

The amendment to the Copyright Act in 1994 provides for a wider definition of the term “literary work”. Literary work includes computer programs, tables and compilations, including computer databases. However, these terms have not been defined in the copyright statute.

Despite India’s being an IT-savvy country, as yet there is no precedent to determine what elements of software may be awarded protection and the extent of protection. The current precedent deals only with software piracy. Therefore it is important to adopt the approach formulated by other countries to separate the idea and the expression in order to determine the elements of protection.

In relation to software, this typically means that a computer program, in both human-readable (text) source code form and machine-executable object code form, and the related manuals, are eligible for copyright protection. However, the methods and algorithms within a program are not protected.

A lack of understanding of software programming and related technical knowledge should not be a deterrent for litigators to approach these cases objectively. The analysis of the Navitaire case and the approach taken there should simplify the task in an Indian court. This also gives rise to a discussion that we should have a separate IP court presided over by tech-savvy judges.

However, while we negotiate that path, we can find ways, as demonstrated in Navitaire, to simplify such technical facts for any litigator and court to understand.

Mahua Roy Chowdhury is managing partner at  Solomon & Roy. She is a patent attorney with almost 19 years’ experience. She has worked with IT companies, helping them to resolve disputes on software infringement and has negotiated technology transfer and patent licensing agreements. She can be contacted at:

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