ORIGINALITY IN Computer programming

AN OVERVIEW

Problem in Computer programs:Technical nature of computer makes

protection of it a difficult from other kinds like music or drama or novel

Computer programs are sui generis among copyright subject matter because of inherent functionality they are different as they impart not a particular information but is to be used as per esthetics sense of the user.

For general protection of copyright - protecting unique of expressing oneself

Idea /expression dichotomy- fundamental principle –• ideas are not protected

• “Expressions” are only protected

• object code & Source code are protected. Now even the user interface, data structure, etc being non-literal element also are protected.

Doctrine of Merger Baker v. Seldon ,1879

If the idea can be expressed only through a

particular or very few means

Both idea and expression get ‘merged’- no

copyright

Scenes-a-faire: well known and standard

expressions of an idea in public domain-

excluded copyright

US Copyright Act s.102(a)- program codes

protected as literary works- original means its

owes to the author-to be novel and “his own”

Feist Publications, Inc. v. Rural Telephone Serv.

Co., Inc,1991- Concept of originality

More originality more protection-Hands. J. in

Nichols v. Universal Pictures Co., 45 F.2d 119,

121 (2d Cir. 1930),

authorship is protected- as any property is

protected

Position in US

Whelan Rule(1987): anything necessary for

functions or purpose of Computer Programs

is idea , everything else expression thus

protected– thus programs Structure ,

Sequence and Organization (SSO) protected

(being literary elements, also if they look

similar then the program would also look so):

giving broader views -“look and feel test”

Lotus Development Corporation v.

Paperback software international, 1990-

(facts)- 3 steps – 1)determination of idea and

expression by moving from general to particular ,

2)expression if possible only only few methods of

expressing,

3)substantial similarity

Computer Associates International v. Altai ,1992- remarkable & widely accepted : AFC Test1. Abstraction(A): breaking non-literal

elements of programs into specific (general to particular)

2. Filtration(F): examining structural components of computer of programs in each level to filter protected expressions (applying merger & scene –a – faire)

3. Comparison(C) : Substantial Similarity test

After applying this what is left over in a program is only Protected i.e., “Golden nuggets”

Original program code Non -literal Elements E.g. : Structures , menus ,sort

routines , database code and database structures etc

GOLDEN NUGGET’S –Protected Elements

Copied Program Code

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Abstraction

Filtration

Comparison

Dramatic Expression of AFC test to find the protected work :

In UK - computer programs if original literary work and is recorded-protection available

Copyright, Designs and Patents Act ,1988- doesn’t define computer programming -follows EU Directive- work must be original, author must have expended some skill, labour, judgement, knowledge (or even taste) in creating it

Source code, object code, micro code and even data or record structure

Protection against copying ,adapting and publically distributing the work

POSITION IN UK

John Richardson Computers v.

Flanders ,1993 – same as Altai decision

except that abstraction was left out thus –

“look and feel” test

Ibcos Computers Finance Ltd v. Barclays

Mercantile High land Finance,1994 –

Individual as well as compilations are also

protected- Court said under the UK Law

“detailed ideas “ than the expressions.

CFI vs Tradition, 1999 – ‘architecture’ of

program code (program structure)protected

if it contains programmer’s skill, labour

and judgment

Navitaire Incorporation v. Easy Jet

Airline Co & ano, 2000- appearance and

functionality- no protection as no literary

element but interface is protected as it can

be viewed as tables

Indian Copyright Act,1956"2. (ffb) 'computer' includes any electronic or

similar device having information processing capabilities;

(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*;

* * *(o) 'literary work' includes computer programmes,

tables and compilations including computer databases; "

* implies computer programs are considered as utilitarian

work

Word ‘expressed’ implies idea / expression dichotomy

‘Form ‘ & ‘medium’ – fixation is requirement

‘words, codes, schemes or in any other form, including a

machine readable medium’- protection to both source code

& object code

Article 10 of TRIPS expressively provides for the protection

of program codes(source or object) in the form of literary

works

Article 9(2) trips reflects about originality – India also

follows the same

S.14 of the Act enumerates what is copyright It is an exclusive right subject to the provisions,

to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof namely-

1. Reproduce the work2. To issue copies to public3. To perform work & communicate in public4. Make cinematographic film or sound recording5. Translation / adaptation6. to sell or give on hire, or offer for sale or hire,

any copy of the computer programme, regardless of whether such copy has been sold or given on hire on earlier occasions

Indian Position:protection as “original literary works”- ( the work is to

be resulted from the labor & skill of the originator)Audience Test : R.G. Anand v. M/s Delux

Films,1978 Protection does not strictly end with words implies

even for non-literal infringement protection available“ to be see if the reader, spectator or the viewer after

having read or seen both the work is clearly of the opinion and gets unmistakable impression(it means only expressions) that the subsequent work appears to be a copy of original” (idea/ expression dichotomy)

Both is together implies that court was in favour of the abstraction test in Nichols v. Universal Pictures

Court also said” there cannot be copyright in an idea , themes ,facts and violation of copyright is confined to form , manner and arrangement and expression of idea by the author of the copyright work”- this statement indicates the amount of filtration

where same idea is developed in different manner ,… courts should determine whether or not similarities are on fundamental or substantial aspects of modes of expression…”– this indicates the Comparison –in case of literal imitations if the variations are minor and copy is substantial and material which would lead to think it as piracy

Indian high courts reluctant to follow it ?In sulamangalam R jayalakshmi & ano, v.

Meta Musicals, Chennai and ors,2005-mad HC followed the G.R Anand V. Delux Films-” sufficient objective similarity” test but couldn’t substantiate ‘objective similarity’ (without the abstraction state-covering program in general)

Raja pocket books v. Radha pocket books ,1997,Del HC-”not only theme is same though represented slightly and somewhat differently ,but central idea remains same”-thus flagrant overruling idea /expression dichotomy.

Anil Gupta & ano v. Kunal DasGupta &

ano,2002,Del HC-

Protection of ideas through the words “an idea

fledged in adequate detail” is capable of

registration under copyright Act-match making TV

shows never in public domain and defendants not

allowed to appropriate -special disability in field of

competition to avoid unfair use

•Following such decisions would definitely lead to express prohibition on developing competing computer programs • same central themed programs would be violating as there would be lot of programs with similar ideas in different levels

•But G.R.Anand v. Delux Films- the layman’s view to find out substantial similarity -flaw in the test

• Hence forth it is better to follow the Altai Test as it’s the most comprehensive , clear and systematic test so far laid down-But still we have to wait ourselves to see how the Indian Court will react while confronting such a position.

By S. Deepika VI sem,

LLB(Hons), SLS,CUSAT

Thank You