Protection of Software: Patentability vs. Copyrightability

 “Software patent enables companies to safeguard their groundbreaking technologies and prohibits others from using their patented inventions, whereas copyright empowers developers to protect their intangible codes and ensures protection from illegal use of original works and maintains the respect of culture for Intellectual Property.”

 

In the realm of software, there are two primary promenades for its protection: patentability and copyrightability.  Both intellectual property rights provide legal protection, but they differ in their scope, requirements and limitations. Patents cover useful and new processes, machines, or composition. In order to be a patentable software, it must meet some requisites of an invention. Copyrights cover the expression of the work, machine-executable form or human-readable forms and relatable manuals are covered in it. In this blog, we will explore the key differences between patentability and copyright and the implications of choosing one form of protection over the over.

 

Key Differences

 

Software Patents prevent others from using their invention and technical aspects without their permission but it’s challenging because its expensive, lengthy and has a complex application process. Unlike patents, copyright is automatically acquired upon creation of the original work; an application procedure is a mere formality that acts as prima facie evidence in the court of law. Copyright protect similar creations with different codes, as copyright merely protects the codes which comes under “Literary work” without providing any protection to the software as a whole which means that any person using different codes to generate the same/ similar software may claim registration for it, which acts as the main loophole under the laws. This invalidates the main essence of protection of software. On the contrary, Patents protect the software as a whole which means that no person can be using the same/ similar software to achieve the same result. Software protection under Copyright cannot extend to global digital environment because its protection is automatically granted in many jurisdictions. Still, it is advisable to register your software with the appropriate copyright office in order to enjoy extra benefits including the opportunity to seek statutory damages and to create a public record of ownership.

 

Legal Provisions in India

 

Software protection in India is duly filed under copyright application with copies of source code and object code. Section 2(ffc) of the Copyright Act, 1957 defines ‘computer work’ and Section 2(o) ‘literary works’ and are read together. The status of software protection in the U.S.A. is patentable as it is referred to as computer associated processes. It is different from country to country as per their legal provisions and the concept of ‘Computer associated work or instruction is protected under Copyright and invention relating to software is under Patent.’

 

Choice between Patentability and Copyright ability

 

The choice to pursue between patent and copyright depends on various factors such as its broad aspect, nature, scope, and the developers or organizations for business purpose. Combined forms of innovation are protected in both of their different aspects. It’s important to seek legal counseling to register with an appropriate strategy.

 

The concluding decision of whether to pursue patentability or copyrightability should be based on the parameters of peculiar features and purpose of the company and the software developer. The requisites and limitations of software should also be considered to pursue the form of safeguarding innovation in a dynamic digital world.