Copyright in a Computer Programme

In one line

A computer programme is a literary work by definition, so copyright protects the code as written and not what the code does.

In the wording a student can write in an exam: section 2(o) of the Copyright Act, 1957 provides that a literary work includes computer programmes, tables and compilations including computer databases; section 2(ffc) defines a computer programme as 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 13(1)(a) makes copyright subsist in original literary works; and section 14(b) gives the owner of copyright in a computer programme the acts specified for a literary work together with the right to sell or give on commercial rental any copy of it.

The three definitions that carry it

Section 2(o): "literary work includes computer programmes, tables and compilations including computer databases".

The word "includes" matters. A computer programme is not something like a literary work; it is one for the purposes of the Act, and every provision about literary works applies to it directly unless the Act says otherwise, which section 14 does in one respect.

"Tables and compilations including computer databases" brings a database in too, and it does so as a literary work rather than as a separate right. India has no sui generis database right of the European kind, which is a comparison worth making in an answer.

Section 2(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."

Three things follow. The source code is protected, because it is expressed in words and codes. The object code is protected, because "in any other form, including a machine readable medium" reaches it. And preparatory material such as flowcharts and design documents is protected as an ordinary literary work in its own right.

Section 2(ffb) defines a computer to include any electronic or similar device having information processing capabilities. Note that this is a different and much shorter definition than section 2(1)(i) of the Information Technology Act, and chapter 150 works that one. An answer should use the definition from the Act it is applying.

Section 13: what makes copyright subsist

Section 13(1)(a): copyright subsists throughout India in original literary, dramatic, musical and artistic works.

The requirement is originality, and originality in copyright means originating from the author and not copied, together with some minimum of skill and judgment. It does not mean novelty and it does not mean quality. Badly written code is protected exactly as well as elegant code.