Computer programming and originality by hcj


									Problem in Computer programs:
 Technical nature of computer makes protection of it a
  difficult from other kinds like music or drama or novel
 Computer programs are sui generis among copyright
  subject matter because of inherent functionality they
  are different as they impart not a particular
  information but is to be used as per esthetics sense of
  the user.
 For general protection of copyright - protecting
  unique of expressing oneself
Idea /expression dichotomy-
  fundamental principle –
• ideas are not protected

• “Expressions” are only protected

• object code & Source code are protected. Now
  even the user interface, data structure, etc being
  non-literal element also are protected.
Doctrine of Merger
 Baker v. Seldon ,1879

 If the idea can be expressed only through a particular
 or very few means

 Both idea and expression get ‘merged’- no copyright

 Scenes-a-faire: well known and standard expressions
 of an idea in public domain-excluded copyright
 US Copyright Act s.102(a)- program codes protected as
  literary works- original means its owes to the author-to
  be novel and “his own”

 Feist Publications, Inc. v. Rural Telephone Serv. Co.,
  Inc,1991- Concept of originality

 More originality more protection-Hands. J. in Nichols
  v. Universal Pictures Co., 45 F.2d 119, 121 (2d Cir. 1930),

 authorship is protected- as any property is protected
 Whelan Rule(1987): anything necessary for functions
 or purpose of Computer Programs is idea , everything
 else expression thus protected– thus programs
 Structure , Sequence and Organization (SSO)
 protected (being literary elements, also if they look
 similar then the program would also look so): giving
 broader views -“look and feel test”
Lotus Development Corporation v. Paperback
software international, 1990- (facts)- 3 steps –
1)determination of idea and expression by moving from
general to particular ,
2)expression if possible only only few methods of
3)substantial similarity
Computer Associates International v. Altai ,1992-
remarkable & widely accepted : AFC Test
1. Abstraction(A): breaking non-literal elements
    of programs into specific (general to
2. Filtration(F): examining structural
    components of computer of programs in each
    level to filter protected expressions (applying
    merger & scene –a – faire)
3. Comparison(C) : Substantial Similarity test
After applying this what is left over in a program is
    only Protected i.e., “Golden nuggets”
Dramatic Expression of AFC test to find the protected
work :

                                         Non -literal Elements E.g. :
Original program code
                                      Structures , menus ,sort routines ,
                                         database code and database
                                                structures etc


Copied Program Code                          GOLDEN NUGGET’S –
                                              Protected Elements
 In UK - computer programs if original literary work
  and is recorded-protection available
 Copyright, Designs and Patents Act ,1988- doesn’t
  define computer programming -follows EU Directive-
  work must be original, author must have expended
  some skill, labour, judgement, knowledge (or even
  taste) in creating it
 Source code, object code, micro code and even data or
  record structure
 Protection against copying ,adapting and publically
  distributing the work
 John Richardson Computers v. Flanders ,1993 –
 same as Altai decision except that abstraction was left
 out thus – “look and feel” test

 Ibcos Computers Finance Ltd v. Barclays Mercantile
 High land Finance,1994 – Individual as well as
 compilations are also protected- Court said under the
 UK Law “detailed ideas “ than the expressions.
CFI vs Tradition, 1999 – ‘architecture’ of program
code (program structure)protected if it contains
programmer’s skill, labour and judgment
Navitaire Incorporation v. Easy Jet Airline Co &
ano, 2000- appearance and functionality- no
protection as no literary element but interface is
protected as it can be viewed as tables
Indian Copyright Act,1956
 "2. (ffb) 'computer' includes any electronic or similar
  device having information processing capabilities;
 (ffc) 'computer programme' means a set of
  instructions expressed in words, codes, schemes or in
  any other form, including a machine readable
  medium, capable of causing a computer to perform a
  particular task or achieve a particular result*;
 (o) 'literary work' includes computer programmes,
  tables and compilations including computer
  databases; "
 * implies computer programs are considered as utilitarian work

 Word ‘expressed’ implies idea / expression dichotomy

 ‘Form ‘ & ‘medium’ – fixation is requirement

 ‘words, codes, schemes or in any other form, including a machine
  readable medium’- protection to both source code & object code

 Article 10 of TRIPS expressively provides for the protection of program
  codes(source or object) in the form of literary works

 Article 9(2) trips reflects about originality – India also follows the
 S.14 of the Act enumerates what is copyright
 It is an exclusive right subject to the provisions, to do
  or authorize the doing of any of the following acts in
  respect of a work or any substantial part thereof
1. Reproduce the work
2. To issue copies to public
3. To perform work & communicate in public
4. Make cinematographic film or sound recording
5. Translation / adaptation
6. to sell or give on hire, or offer for sale or hire, any
    copy of the computer programme, regardless of
    whether such copy has been sold or given on hire on
    earlier occasions
Indian Position:
  protection as “original literary works”- ( the work is to
    be resulted from the labor & skill of the originator)
  Audience Test : R.G. Anand v. M/s Delux Films,1978
      Protection does not strictly end with words implies
    even for non-literal infringement protection available
 “ to be see if the reader, spectator or the viewer after
    having read or seen both the work is clearly of the
    opinion and gets unmistakable impression(it means
    only expressions) that the subsequent work appears to
    be a copy of original” (idea/ expression dichotomy)
  Both is together implies that court was in favour of the
    abstraction test in Nichols v. Universal Pictures
 Court also said” there cannot be copyright in an idea ,
 themes ,facts and violation of copyright is confined to
 form , manner and arrangement and expression of idea
 by the author of the copyright work”- this statement
 indicates the amount of filtration

 where same idea is developed in different manner ,…
 courts should determine whether or not similarities are
 on fundamental or substantial aspects of modes of
 expression…”– this indicates the Comparison –in case of
 literal imitations if the variations are minor and copy is
 substantial and material which would lead to think it as
Indian high courts reluctant to
follow it ?
 In sulamangalam R jayalakshmi & ano, v. Meta
  Musicals, Chennai and ors,2005-mad HC followed the
  G.R Anand V. Delux Films-” sufficient objective similarity”
  test but couldn’t substantiate ‘objective similarity’
  (without the abstraction state-covering program in
 Raja pocket books v. Radha pocket books ,1997,Del HC-
  ”not only theme is same though represented slightly and
  somewhat differently ,but central idea remains same”-thus
  flagrant overruling idea /expression dichotomy.
Anil Gupta & ano v. Kunal DasGupta & ano,2002,Del
Protection of ideas through the words “an idea fledged in
adequate detail” is capable of registration under copyright
Act-match making TV shows never in public domain and
defendants not allowed to appropriate -special disability in
field of competition to avoid unfair use
•Following such decisions would definitely lead to express
prohibition on developing competing computer programs

• same central themed programs would be violating as there would
be lot of programs with similar ideas in different levels

•But G.R.Anand v. Delux Films- the layman’s view to find out
substantial similarity -flaw in the test

• Hence forth it is better to follow the Altai Test as it’s the most
comprehensive , clear and systematic test so far laid down-But
still we have to wait ourselves to see how the Indian Court will react
while confronting such a position.
By S. Deepika
    VI sem, LLB(Hons),

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