Why Software Is Hard to Protect

In one line

Software is a text that behaves like a machine, and every branch of intellectual property protects one half of that description and misses the other.

In the wording a student can write in an exam: a computer programme has a dual character, being at once an expression in a language, which is what copyright protects, and a functional artefact producing a technical result, which is what patent law protects; Indian law protects it primarily as a literary work under the Copyright Act, 1957, excludes a computer programme per se from patentability under section 3(k) of the Patents Act, 1970, protects the layout design of an integrated circuit under the Semiconductor Integrated Circuits Layout-Design Act, 2000, and leaves confidential information to contract and equity, there being no trade secrets statute in India.

What a computer programme actually is

Section 2(ffc) of the Copyright Act defines it: 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.

Read that definition and the dual character is on its face. It is expressed in words, codes or schemes, which is the language half. And it is capable of causing a computer to perform a particular task or achieve a particular result, which is the machine half.

A novel does not cause anything to happen. A machine is not written in a language. Software is both, and that is why every branch of intellectual property fits it awkwardly.

Why each branch fits badly

Copyright protects expression and not ideas. So it protects the particular lines a programmer wrote and does not protect what the program does. A competitor who reads the specification and writes his own code from scratch infringes nothing, however identical the behaviour. For a novel that result is correct, because the value of a novel is in its words. For software the value is usually in what it does.

Patents protect function and require an invention. That would fit software well, and section 3(k) of the Patents Act excludes a computer programme per se from being an invention. Chapter 510 works the exclusion and the argument about what "per se" leaves.

Trade marks protect a name and not a thing. They stop somebody selling a different program under your name; they do nothing about somebody copying your program and selling it under theirs.

Designs protect appearance. The Designs Act, 2000 protects features of shape, configuration, pattern or ornament applied to an article, which reaches the visual appearance of an interface in some jurisdictions and sits uneasily with the exclusion of anything that is merely a mode or principle of construction.