Copyrighting Software 

 In today’s cyber world, getting the best protection from the existing laws is extremely essential. There are mainly two types of Intellectual Properties that one can protect in cyber space. One is Trade Mark protection and the other is Copyright protection. The Indian Law so far protects only those trade marks which can be used on goods or in relation to goods. The Trade Mark law in India does not protect service marks although legislation has been passed to protect service marks it is awaiting proper notification before it can become law. The other type of protection that is easily available is Copyright protection. Copyright protection is available for original literary, dramatic, musical, cinematographic films, sound recordings and artistic works. Copyright protection automatically extends to all original works from the moment the work is fixed in some tangible form. Original means that the work has been independently created and is not a copy or a reproduction of some existing work. To be entitled to copyright protection the work should be fixed in some tangible form, which means that the work has been reduced in writing or recorded on tape, or in some other manner. All literary and artistic works, including advertisements, computer programs, motion pictures, charts, graphs, maps, audiovisual works, databases and compilations of works, are copyrightable

 A computer program is a literary work and hence can enjoy copyright protection. A computer program is only entitled to copyright protection and cannot be patented in India.

 A Computer program means a set of instructions expressed in words, codes, schemes or in any other form, including machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. While a computer has been defined as any electronic or similar device having information processing capability. A computer software could include items like the computer program, punched cards, the manuals, magnetic tapes, discs, etc., that may be required for the working of computers. It would include the source code and the object code. The source code is the program written in any of the programming languages, while the object code is the mechanical translation or an adaptation of the source code into machine language that is understood by the computer. There is some difference of opinion as to whether the object code is an adaptation or translation of the source code. The courts in England have held that, the object code is not a translation of the source code within the primary meaning of the word and that it consists of electric impulses generated by the chip which cannot be perceived by the human senses.  However, the U.S. courts have taken a contrary view.

 The essential requirement for being copyrightable is that some time, effort and capital should have been expended in the creation of the work which should be reduced in some material form, and which should be original and new. If the effort or skill used in producing the work is too trivial, no copyright can be claimed in the work.

In case of computer programs, the author is the person who has actually written the program. It does not make any difference if the idea was supplied by some other person. A person who writes the autobiography of some famous person, by getting inputs from such person, will be the author of the book and not the person.

 When the program is created by some person or persons, in the course of employment, under a service contract, it is usually the employer who is the author of the copyright in the program and not the person who has actually written it.

 Many a times the development of a computer program is outsourced or commissioned to some other person or agency for a certain consideration. In such cases, it is usually the person at whose instance the work was created who is the owner of the copyright in that work. It would always be advisable that such rights be reduced into writing as an agreement or contract to prevent disputes at a later date.