International trends in Software Protection

Author – Bharat Sharma, Charu Joshi

Software industry is considered as the global powerhouse in this era. Naturally, many legal, economical, security implications follow the same. A unique feature of this field of software is that it cannot be restricted to only one form of intellectual property. Computer software consists of several elements, the reason why many have attempted to classify it under patents, copyright and trade secrets.

A software can be defined as a set of instructions for the computer, based on which, a desired output is given. The manner in which these instructions are written can help to determine the kind of intellectual property protection which can be provided.

The software consists of a source code which is essentially a code written in a programming language. From this perspective, a software can be regarded as a literary work and is therefore defined as a literary work, under the Copyright Laws. In fact, protection is offered as per the World Intellectual Property Organisation Corporation treaty (WCT), under the WTO’s TRIPS Agreement as well as under the European Council Directive on Legal Protection of Computer Programs.

Typically, the intellectual property contained by a software is prone to three kinds of attacks:

  1. Reverse engineering: The process where a piece of software or hardware is been analysed with respect to its function and information flow in order to translate the same in a readable format.
  2. Software piracy: Unauthorized download, copy, use or distribution of a software and
  3. Software Tampering

The technical defenses to these attacks are confusing, watermarking and tamper-proofing the software. All these attacks can be countered by appropriate legal protection and action but the main problem remains unsolved : ‘how to discover an attack?’. In simple words, it is too expensive as well as difficult to find a remedy to an attack.

Computer programs are protected by patent law, copyright law, trade secret and contract laws across the globe.


The term ‘software’ is not defined in Indian laws, however, its general dictionary meaning is the programs, etc. used to operate a computer. Patent are used to protect non-literal and functional aspects of a software.

Patent protection is one of the practical methods that offer protection to software. In the 1970s, the US Supreme court in the case of Gottschalk vs. Benson 1 held that ‘a computer program based on a mathematical algorithm is not patentable as the ‘algorithm’ itself is not a patentable subject matter’.

In the case of Diamond v Diehr2, the court ordered USPTO to grant a patent which utilized a computer to regulate the heat supplied to rubber. The court held that ‘the process was not merely a mathematical algorithm but was a process of molding rubber, hence, was patentable. There was no absolute principle that can determine whether a software is patentable or not’.

In the case of State street bank & Trust V. Signature Financial group149 F.3d 1368 (Fed. Cir. 1998)3, the court came up with another conclusion that a software that yields a ‘useful’, concrete and tangible result, should be considered patentable.

In an US Supreme court decision in Mayo Collaborative Services V. Prometheus Laboratories4Inc, the court re-emphasizsed that laws of nature, naturally occurring incidences or abstract ideas are not patentable subject matter.

In the European patent system for software, to claim a patent, a single technical feature is sufficient.can suffice Hhowever, the invention has to have an inventive step. Unlike the US, in the European Patent Office screening is done coarse filters are used to filter out those inventions that are merely abstract and lack a technological aspect. The inventive step involved is the ‘technical contribution’ by the inventor. It cannot be based on non-technical information.

In the European patent system, a computer program product is not excluded from patentability under Art. 52(2); which stipulates what constitutes a non-patentable subject matter, and under 52(3) of European patent convention.

“If the program, when running on a computer or loaded into a computer, brings about, or is capable of bringing about, a technical effect which goes beyond the “normal” physical interactions between the program (software) and the computer (hardware) on which it is run may be patentable”.

A claim directed to the use of ato the utilization of a computer program, for the solution of a technical issueproblem is not regarded as seekingseen as looking for protection for the program as such within the meaning of Art. 52(2)(c) and (3) EPC 1973, even if the basic idea underlying the invention could be considered to reside in the computer program itself. Thus, an invention can be patentable when the basic idea underlying the invention resides in the computer program itself.

In India patent applications relating to computer related inventions are considered to the extent of ‘novelty, inventive step, industrial applicability and sufficiency of disclosure’ etc. The determination that the subject matter relates to one of the excluded categories of patentable subject matter requires greater skill on the part of the examiner and these guidelines focus more on this aspectrequires greater skill on the part of the learned examiner and these guidelines focus more on this aspect.

The general nature of patentable subject matter excludes a ‘code’ from patentabilitybeing patentable. Hence, copyright law is favoured given more importance in order to protect compute programsmmes. Copyright protection is granted for original literary pieces that include software codes in a sense that it must be in the form of an ‘expression’ of an idea.

Countries like the such as United States, Hungary, Australia, India, France, Germany, Japan, Portugal, the Republic of China, United Kingdom, Korea and Singaporeand Singapore recognize the copyrightability of computer programsmmes.

A software has various other elements other than the source code that are not protected by copyright. The instructions given in the code do notn’t have a grammatical construction but includes have a functions to perform the same. It can be the case that two different source code given similar set of instructions to achieve a same function. This feature leads to the idea-expression dichotomy debate.

One of the leading cases were brought about by Apple Inc. inc which fell victim to other parties copying the Apple operating systems of Apple. The courts in great detail discussed the copyrightability of programmmes coded in read only memories (ROM) and copyrighted in the form of object code rather than source code.

The parties sought to draw a difference between application programs and operating systems programs. The oOperating systems are in the nature of a ‘process’, ‘system’ or a ‘method of operation’ which is not protected under US copyright law.

It is also usually argued that when copyright protection is granted to a set of instructions used to implement a method, it is in a way, granting copyright to the method. .The courts have also held that the operating system programs need not be treated as a “process” or “method” when application programs arewere not so treated and the function performed by the program is irrelevant to the protection afforded.

It was also the contention in past cases that the operating system programs were not copyrightable because there were a limited number of ways to design an operating system that enabled a computer to run Apple-compatible software.The courts however have rejected this argument.

The Ccanadian courts in the case of Apple Computer, Inc. v. Mackintosh Computers ([1990] 2 S.C.R. 2095,), have held that Apple’s registered copyright in two operating system programs, Autostart ROM and Applesoft, were protected under Canada’s copyright statute.


In addition to copyright or software protection, trade secrets can also be used to protect a software. It can prove to be advantageous over patent or copyright due to reduced filing cost and they aid in protecting a protect a broader range of software information better than than a copyright protection. In the case of a trade secret misappropriation, it was held in Broker Genius Broker case that the burden of proof is on the plaintiff, plaintiff in such cases has to prove the existence of at there existed a trade secret and the use of the same trade secret improperly by the defendant.

used the same trade secret improperly. Usually, companies have extensive confidentiality policies and make their employees sign well drafted non-disclosure agreements.


The international instrumentsIn the international agreement, such as TRIPS, Agreement , where Article 10 of the agreement provides copyright protection to the source code or object code of the software and Article 27 provides patent protection to technological fields capable of industrial application. Article 31 of the TRIPS also paves way for trade secret protection for the software.

Usually, the technical effect of software is are patented and the worldwide, otherwise the literal part of its instructions can be protected by copyrightsCopyright Law. However, the copyrightable or patentable subject matter in a software has always been a debate and a contention for courts to make rules upon.

Other than these instruments, software companies go for providing trade secret protection to their softwares. These legal instruments in combination with technical defenses such as tamper-proofing or confusionobfuscation of software make up the general practices to provide protection to a software.


  1. 21st ed.Jack E. Brown, Recent International Trends in the Legal Protection of Computer Software, 2 J.L. & TECH. 167 (1987).Charles B. Ortner, CURRENT TRENDS IN SOFTWARE PROTECTION—A LITIGATION PERSPECTIVE: AN OUTLINE, Jurimetrics, Vol. 25, No. 3 (Spring 1985), pp. 319-332 Genius, Inc. v. Zalta, 280 F. Supp. 3d 495, 504 (S.D.N.Y. 2017)Mrs. D. SeemaDev Aksatha, M. Blessing Marsha l”Software Piracy Protection” Publishedin International Journal of Trend inScientific Research and Development(ijtsrd), ISSN: 2456-6470, Volume-3, |Issue-3, April 2019,pp.243-246,

1 409 U.S. 63 (1972)

2 450 U.S. 175 (1981)

3 149 F.3d 1368 (Fed. Cir. 1998)

4 566 U.S. 66 (2012)

5 ([1990] 2 S.C.R. 209

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Bharat Sharma

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