Centre for Internet & Society

The Pervasive Technologies project looks at the impact of intellectual property rights on the Indian mobile app development industry, amongst other research questions. This post identifies the various kinds of IP in an app, and explains the protections available under Indian IPR law.

A mobile application is a small piece of software designed to run on smartphones, tablets and other mobile devices. Apps are usually accessible through app distribution platforms, such as the Apple App Store, Google Play Store, etc. An app comprises of various components which qualify as IP. The IP merits protection by various IPRs, for instance: the underlying technology and background processes may be patented; source code may be copyrighted; graphical user interface may be protected by a design patent (a protection available under US law, and not Indian law); finally, brand and icons may be registered as trademarks. This post discusses patent and copyright protections applicable to a mobile app. 

Patent and the App

Inventions in the realm of software have certain limitations on their patentability in India.[1] The Indian regime allows patents on software inventions which demonstrate an inventive step in the hardware connected with the software; an inventive step lying solely in the software will disqualify the patentability of the invention. The primary rationale for limited software patenting is the principle that purely abstract or intellectual methods are not patentable, in addition to legal, philosophical and practical reasons. Patent legislations across the world reject patentability of business methods, algorithms, mathematical calculations, etc.

Facts indicate that patent applications relating to mobile app based inventions have been filed in India (as of 2014, there were 46 published applications). Another piece of research (Helmers et al, 2014; the study was not India specific) found the share of apps protected by patents to be quite low,[2] indicating patent protection for the underlying tech in an app was an unpopular choice (they explain the results by showing that due to a fast-moving market environment, an overwhelming share of app producers rely on first-mover (lead time) advantage, instead).

What the law says

The Indian Patents Act, 1970 tells us which inventions are not eligible for a patent. The negative list includes a ‘computer programme per se’.[3] Unfortunately, the Act does not provide a definition of ‘computer programme per se’.[4]

In the absence of a clear definition of the excluded matter, it is useful to look at a subordinate legislation drafted by the Indian Patent Office, ‘Guidelines on Examination of Computer Related Inventions (CRIs)’, to aid our understanding of how software inventions may be patented. The Guidelines frame software inventions as CRIs and throw light on the excludability of subject matter relating to CRIs, i.e. they inform us about which claims in an application may be patent ineligible. Any claims in the application (relating to CRIs) that are directed at mathematical methods, business methods, algorithms, computer progammes per se, literary/dramatic/musical/artistic work/any aesthetic work including cinematographic works and television productions, mere scheme or rule or method of performing mental act(s) or a method of playing game(s), presentation of information are patent ineligible.

After construing the claims and identifying the actual contribution in the CRI, patent examiners further test the subject matter of the contribution. If the contribution lies in purely in mathematical method, business method or algorithm, the claim will be denied. In case the contribution lies in the ‘field of a computer programme’, the examiner will first check whether it is claimed in conjunction with a novel hardware. If yes, then the examiner will proceed to next steps to determine patentability with respect to the invention. If contribution lies in both the computer programme as well as hardware, the examiner will proceed to the next steps, also. However, if the contribution lies solely in the computer programme, the claim will be denied.

Copyright and the App

The Indian Copyright Act, 1957 recognizes ‘computer programme’ and ‘tables and compilations including computer databases’ as a literary work.  According to the Act, copyright subsists in original literary, dramatic, musical and artistic works, and cinematograph and sound recordings. The source code of an app qualifies as a literary work. Apart from that, the textual, audio, photographic and video elements would qualify as literary, musical works+sound recordings, artistic, and cinematographic works, respectively. A copyright vests automatically in a fixed work, regardless of registration with the Copyright Office.[5]

It is pertinent to discuss the Free and Open Source Software movement (FOSS) that exists in the realm of software development. FOSS essentially revolves around the open licensing of software (by legally easing the automatic copyright vested in a piece of code), and is based upon the philosophy of free software (connoting freedom of access, and not gratis provisions necessarily). It serves the freedom of the user and programmer both, and leads to better and more efficient software production.[6] A few popular licenses are MIT license, GNU (GPL), Apache license v 2.0.

Copyright legislations implement restrictions on the economic exploitation of works, and the Indian Copyright Act, 1957 is no exception. The Act deems certain specific acts of the user to be non-infringing of the copyrighted works. In respect of computer programmes, the following acts may be performed by a developer without seeking the permission of the owner/author of he work:

Section 52. Certain acts not to be infringement of copyright.
(1) The following acts shall not constitute an infringement of copyright, namely —
...
(aa) the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme, from such copy —(i) in order to utilise the computer programme for the purposes for which it was supplied; or
(ii) to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilise the computer programme for the purpose for which it was supplied;
(ab) the doing of any act necessary to obtain information essential for operating interoperability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available;
(ac) the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underlie any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied;
(ad) the making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use;
...

Subject to the conditions laid down above, reverse-engineering of a computer programme may be a non-infringing activity. Developers often engage in debugging, decompilation, fuzz testing, string analyses, etc of code, and such acts if performed while observing, studying or testing a computer programme in order to determine the ideas and principles which underlie any elements of the programme (...) (s. 52(1)(ac)), will qualify as non-infringing uses.

Section 65A(1) of the Indian Copyright Act, 1957 criminalises the circumvention of technological protection measures (TPM). Any person intentionally circumventing a TPM applied for the purposes of protecting any right conferred by the Act is liable for penalty and imprisonment. S. 65A(2), however, allows circumvention for purposes not expressly prohibited in the Act(the non-infringing uses listed above) duly recorded, for encryption research, conducting lawful investigation, for testing security of a computer system/work with the owner’s/operator’s authorisation, identification or surveillance of a user, or measures in the interest of national security.

Endnotes

[1] The limitations exist only in respect of the subject matter of the application. All other examination steps remain the same.

[2] As of 2013, they discovered 212 apps in the Apple App Store protected by patents; 392 apps in Google Play Store; 192 apps in Blackberry’s Store; 30 in Nokia and 48 in Window’s store.

[3] Section 3(k) of the Indian Patents Act, 1970: “What are not inventions – (…) a mathematical or business method or a computer programme per se or algorithms;”

[4] The Guidelines refer to the definition of ‘computer programme’ under the Copyright Act, 1957 and use the general dictionary meaning of the words ‘per se’: “The standard dictionary meaning of “per se” is “‘ by itself” or “in itself” or “as such” or “intrinsically” - to show that you are referring to something on its own, rather than in connection with other things.”

[5] Registration serves as prima facie evidence of the copyright.

[6] CIS’ work on FOSS: http://cis-india.org/openness/publications/foss

 

References

Christian Helmers, Sebastian Kraaijenzank and Yongdong Liu. Innovation without Patents? Evidence from the Mobile Apps Market (2014)

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