This document provides an overview of intellectual property protection for computer-generated works through copyright and patents in international and Indian law. Internationally, the TRIPS agreement, Berne Convention, and WIPO treaties provide various forms of protection including copyright, patents, and trade secrets. In India, the Copyright Act protects original computer software as a literary work. Copyright subsists if the software involves sufficient skill and labor. Patent protection is available for software only when combined with hardware. Remedies for infringement include injunctions, damages, and criminal penalties. Certain limited acts like backup copies and reverse engineering do not constitute infringement.

1. IPR PROTECTION
OF
COMPUTER GENERATED
WORKS
THROUGH
COPYRIGHT AND PATENTS:
A COMPARATIVE STUDY

2. INTRODUCTION
 As John Locke has suggested, an author’s
right to the exclusive exploitation of his work
exists partly because the author takes things
available to all and applies his labor to those
things to create something new
 Several recent cases have refocused
attention on authorship as an essential
criterion of copyright subsistence and these
cases suggest that much computer-produced
output may be authorless and thus lack
copyright protection
 How can web-sites their layouts, E-Books,
softwares, Databases etc. be protected under
the law?

3. INTERNATIONAL SCENARIO
 TRIPs
Three different forms of protection for
software:
1. Article 10 provides Copyright
Protection
2. Article 27.1 recognizes patent
protection
3. Article 39 offers a trade secret
regime
 Berne Convention
Article 2 are mere illustrations of the kinds
of works of applied art to which copyright
might extend.
These illustrations are not exhaustive.

4. Cont.
 The Universal Copyright Convention (“UCC”)
Geneva, Switzerland, 1952
National Treatment Provisions - software created
by an author is protected in other UCC member
countries to the extent that the member country’s
copyright laws protect software
 World Intellectual Property Organization
Copyright Treaty (WCT) and WPPT, 1996
WIPO Copyright Treaty (“WCT”) and the WIPO
Performances and Phonograms Treaty
(“WPPT”). The WCT of 1996 is a special
agreement to the Berne Convention and requires
compliance with Berne Convention.

5. PROTECTION
OF
COMPUTER GENERATED
WORK:
INDIAN PERSPECTIVE

6. PROTECTION IN FORM OF
COPYRIGHT
 Copyright was usually associated with
artistic products, but today is also now
an important tool in protecting computer
software
 The Copyright Act, 1957 provides
copyright protection for original works
 Computer software which does not have
a technical effect is protected under
copyright law.
 Section 13 provides the categories of
work in which the copyright subsists
which includes original literary work.

7. Cont.
 The Act was amended in 1999 so as to
make the Act compatible with the
provisions of TRIPS.
◦ Section 2(ffc) - “Computer Program” 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.
◦ Section 2(o) - “Literary work” is defined as
that which includes computer programs,
tables and compilations including computer
databases.

8. Cont.
 The government of India passed the
International Copyright Order, 1958
whereby any work first published in any
country which is a member of the Berne
Convention or the UCC will be accorded the
same treatment as if it was first published in
India.
 In Tata Consultancy Services v. State of
Andhra Pradesh, the Supreme Court
considered computer software is intellectual
property, whether it is conveyed in diskettes,
floppy, magnetic tapes or CD ROMs, whether
canned or uncanned, whether it comes as
part of computer or independently, whether it
is branded or unbranded, tangible or
intangible

9. CONDITIONS FOR
COPYRIGHT
 computer software needs to be
1. original and;
2. sufficient effort and skill must be put into impart
it originality
 program which only generates multiplication
tables or algorithms may not suffice the
degree of effort required for protection.
 the work should be first published in India or;
 if the work is published outside India the
author on the date of publication or if the
author is dead at the time of his death should
be a citizen of India.

10. INFRINGEMENT UNDER
COPYRIGHT ACT
 Section 51 states that a person infringes
copyright of another if he unauthorized
commits any act which only the copyright
folder has exclusive rights to do
 Section 63B - Any person who
knowingly makes use of an infringing
copy of a computer program is liable to
be punished with imprisonment for a
term of at least seven days and can be
extended to three years and with fine of
at least Rs. 50,000

11. Cont.
 Both Civil and Criminal remedies to
copyright infringement are provided in
Chapter XII granting:
1. Section 62 - injunction and damages
2. Section 63 - abetment of infringement
punishable with imprisonment of up to
three years and a fine up to Rs. 2 Lacs

12. Cont.
 The following acts do not constitute
infringement of copyright in software:
1. Making copies in order to utilize the
program for the purpose for which it was
supplied or to make back-up copies purely
as a temporary protection against loss,
destruction or damage
2. Doing any act necessary to obtain
information essential for operating inter-
operability of an independently created
computer program
3. Observation, in order to determine the ideas
and principles which underline any
elements of the program
4. Making copies for non-commercial

13. PROTECTION IN FORM OF
PATENT
 Earlier Computer Programs received
protection under Berne Convention as
copyright of literary works.
 But since copyright protection is only
extended to the expression of the idea
and not the idea itself, protection was
given to source code, object code and
screen displays as “look & feel”
theory

14. Cont.
 India has amended its Patent Act, 1970
by Patent (Amendment) Act, 2002 to
offer Patent protection for computer
software.
 Section 3 (k) - states that a computer
program per se other than its technical
application to industry or a combination
with hardware is not patentable.
 Thus, software can be registered as a
patent only if it is in combination with
hardware and not otherwise.

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YOU!