Software patent, copyright in software and software piracy — Intellectual Property Rights I Notes

Software patent, copyright in software and software piracy

When India’s Patent Office refuses a patent on a brilliant new program, the inventor is not being punished for a bad idea — s.3(k) of the Patents Act simply says a “computer programme per se” is not an invention. Software takes the copyright door instead, which is why the same code can be copyrighted but not patented.

How software is protected

Software sits awkwardly across two IP regimes, and the whole topic turns on telling them apart.

A. Copyright in software — the main protection

Under the Copyright Act, 1957, a “computer programme” is expressly included in the definition of a “literary work” (s.2(o)). So software enjoys automatic copyright protection the moment it is written — no registration is needed — protecting the source code and object code as expression. The author (or the employer, for work made in the course of employment) is the first owner, and the term is the life of the author plus 60 years. Copyright protects the way the program is written, not the underlying idea, method or algorithm.

B. Software patent — the narrow, difficult door

Under the Patents Act, 1970, s.3(k), “a mathematical or business method or a computer programme per se or algorithms” is not a patentable invention. So software as such cannot be patented. The only opening is where the software is not claimed on its own but is part of a novel technical process or a new physical device producing a technical effect — then the invention as a whole (hardware + software) may be patentable. Software standing alone is barred.

C. Software piracy

Software piracy is the unauthorised copying, distribution, downloading or use of software in breach of the owner’s copyright and licence. Common forms are end-user copying (installing one licence on many machines), counterfeiting, hard-disk loading, and internet distribution of cracked programs. It is an infringement of copyright (Copyright Act, 1957, ss.51, 63 — up to 3 years’ imprisonment and fine), and where it involves circumventing technical protection or tampering with code it can also attract the IT Act (s.66/s.65).

Copyright Act, 1957, s.2(o): “’literary work’ includes computer programmes, tables and compilations including computer databases.”

Patents Act, 1970, s.3(k): “a mathematical or business method or a computer programme per se or algorithms” — are not inventions within the meaning of the Act.

In Simple Terms: Software is protected mainly by copyright (it counts as a “literary work”, automatic on creation) and only rarely by a patent — because s.3(k) bars a “computer programme per se”. Copying software without a licence is piracy, a copyright infringement. Advise a software creator to rely on copyright, not to chase a patent.

🧩 WORKED EXAMPLE — ‘X’ wants a patent for his software

Facts. ‘X’ has developed a computer program and applies for a patent over it. Advise him.

Rule. s.3(k), Patents Act, 1970 — a computer programme per se is not patentable; software is protected instead as a literary work under s.2(o), Copyright Act, 1957.

Apply. ‘X’s claim is to software as such, which is barred by s.3(k). Unless the program is embedded in a genuinely new hardware device or technical process, no patent will be granted. His code is, however, automatically protected by copyright.

Decoy. The novelty or cleverness of the program cannot rescue it — s.3(k) is a subject-matter bar that novelty does not cure.

Conclusion. Advise ‘X’ that a patent is not available (s.3(k)); he should rely on copyright (and licensing) to protect his software.

flowchart TD
    SW["Protecting software"]:::root
    SW --> CR["Copyright — 'literary work' (s.2(o)); automatic; main route"]:::leaf
    SW --> PT["Patent — barred as 'programme per se' (s.3(k)); only if technical device"]:::leaf
    SW --> PI["Piracy = unauthorised copying = copyright infringement (ss.51, 63)"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;

Case Laws

• Novartis AG v Union of India (2013) — confirms that s.3 subject-matter bars (like s.3(k) for software, s.3(d) for drugs) cannot be cured by novelty alone.
• Microsoft Corporation v Yogesh Papat (2005) — Delhi HC awarded damages for software piracy (hard-disk loading of pirated Microsoft software) as copyright infringement.

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