SOFTWARE INFRINGEMENT Te significance is that the soſtware industry
cannot provide a single entity with a monopoly over soſtware’s functionality.
So, while
providing a wider space to developers, it has restricted the subject matter in soſtware that may be protected by copyright.
Te 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. Te court analysed the flow chart of
the
functional components of the plaintiff’s system and the system associated with it: a diagram of the soſtware modules making up the soſtware. Te court further analysed in detail the user interfaces and the codes defining such an interface with and without internet. Te user interface was divided into four parts—four classes of relevant copyright works represented by the user command codes. Tis included analysing the layouts of the particular screens, the flight fares and flight scheduling interface and the codes used. Te ruling in SAS simply affirmed that the
actual framework or the source code of a soſtware can be protected by copyright. In the Navitaire case, copyright infringement was claimed for the alleged “non-textual” copying of soſtware by EasyJet. Non-textual copying refers to the adoption of the look and feel of the soſtware. In this particular case, the source code of the
soſtware 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 soſtware
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 soſtware in hand.
The US position In the US, computer soſtware is considered within the ambit of literal works. Te courts in the US have formulated various tests for determining soſtware 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
www.worldipreview.com
“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.”
that copyright protection awarded to soſtware 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. Te court formulated the ‘Altai test’, which
uses an abstraction-filtration-comparison test to distinguish between the protected elements. Te 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. Te 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 soſtware infringement in the US, a soſtware infringement case should ideally rest on the main subject matter of copyright protection within the soſtware 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 soſtware infringement in both the US and UK. Terefore copyright infringement is likely to have occurred where there was access to the original soſtware 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. Te amendment to the Copyright Act in 1994 provides for a wider definition of
the World Intellectual Property Review Annual 2015 79
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 soſtware infringement and has negotiated technology transfer and patent
licensing agreements. She can be contacted at:
mahua@solomonandroy.com
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 soſtware may be awarded protection and the extent of protection. Te current precedent deals only with soſtware piracy. Terefore 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 soſtware, 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 soſtware
programming and related technical knowledge should not be a deterrent for litigators to approach these cases objectively. Te analysis of the Navitaire case and the approach taken there should simplify the task in an Indian court. Tis 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.
RUSLAN GRUMBLE /
SHUTTERSTOCK.COM
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