Should One Apply for a Copyright or a Patent for a Computer Software Program?

Intellectual Property is basically a form of intangible property which can actually be owned by individuals, even though it does not exist in physical form. Intellectual property can be in the form of patents, copyrights, trademarks, designs or trade secrets. Intellectual property law is designed to offer protection to creators or owners of intellectual property so that they may derive benefit from their creation. The kind of protection available depends on the character of the work in question. For example, a novel can only be protected under copyright law and a new invention / process can only be protected under patent law. In this article, we discuss whether one should get a copyright or a patent in particular cases, such as a computer software program.

Is Software Copyrightable or Patentable?

In intellectual property law, copyright protects a particular creative expression of an idea from being duplicated whereas a Patent protects the idea itself. This is important because a software program is not just an expression of an idea, sometimes it is the idea itself. A problem arises with giving strict monopoly in software programs, because most contain what is known as source code which is simply put like the words and alphabets in a language. A strict monopoly of this would mean no one else could use it. This is definitely undesirable, but at the same time, giving less protection in law means that we are not "incentivizing" creativity.

Frequently, many people ask us the question of whether computer software is copyrightable only or is capable of being registered as a patent. The reason why this makes a difference is that law provides more stringent protection for a patent than for a copyright. This is because the law makers did not (and most still don't) view software as an 'invention' per se and did not at the time of the legislation believe it needed the level of protection offered by a patent. The protection offered under a patent is also much wider than that offered under a copyright.

So what does the difference mean?

The implication of this is that if an individual comes up with a unique idea for a software program say accounting software at a time where none existed, if it were granted a patent, no other company could develop similar software or engage in the research and development to produce such software. On the other hand, if it were granted a copyright, all that would mean is that no one else could duplicate that exact software with the exact same code and derive profit from it. They would be free to come out with their own versions with differing source code and profit from it.

In this day and age it is child's play to reverse engineer software once the purpose and idea is disclosed, making it very hard for upcoming software developers to actually gain something of their invention. In India, we do not really protect and incentivize creativity for software developers in a country whose economy is driven by the services industry as its single largest export market.

Note: A work can enjoy copyright protection even if the author does not apply for the same whereas in the case of patents, the inventor has no recourse from infringement if he has not applied for a patent.


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