3. Problem in Computer programs: Technical nature of computer makes protection of it a difficult from other kinds like music or drama or novel Computer programs are sui generis among copyright subject matter because of inherent functionality they are different as they impart not a particular information but is to be used as per esthetics sense of the user. For general protection of copyright - protecting unique of expressing oneself

4. Idea /expression dichotomy - Idea /expression dichotomy - fundamental principle – ideas are not protected “Expressions” are only protected object code & Source code are protected. Now even the user interface, data structure, etc being non-literal element also are protected.

5. Doctrine of Merger Baker v. Seldon,1879 If the idea can be expressed only through a particular or very few means Both idea and expression get ‘merged’- no copyright Scenes-a-faire: well known and standard expressions of an idea in public domain-excluded copyright

6. US Copyright Act s.102(a)- program codes protected as literary works- original means its owes to the author-to be novel and “his own” Feist Publications, Inc. v. Rural Telephone Serv. Co., Inc,1991- Concept of originality More originality more protection-Hands. J. in Nichols v. Universal Pictures Co., 45 F.2d 119, 121 (2d Cir. 1930), authorship is protected- as any property is protected

7. Whelan Rule(1987): anything necessary for functions or purpose of Computer Programs is idea, everything else expression thus protected– thus programs Structure, Sequence and Organization (SSO) protected (being literary elements, also if they look similar then the program would also look so): giving broader views -“look and feel test”

8. Lotus Development Corporation v. Paperback software international, 1990- (facts)- 3 steps – 1)determination of idea and expression by moving from general to particular, 2)expression if possible only only few methods of expressing, 3)substantial similarity

9. Computer Associates International v. Altai, Computer Associates International v. Altai, 1992 - remarkable & widely accepted : AFC Test 1.Abstraction(A): breaking non-literal elements of programs into specific (general to particular) 2.Filtration(F): examining structural components of computer of programs in each level to filter protected expressions (applying merger & scene –a – faire) 3.Comparison(C) : Substantial Similarity test Golden nuggets ” After applying this what is left over in a program is only Protected i.e., “Golden nuggets ”

10. Original program code Non -literal Elements E.g. : Structures, menus,sort routines, database code and database structures etc GOLDEN NUGGET’S – Protected Elements Copied Program Code ================================== Abstraction Filtration Comparison Dramatic Expression of AFC test to find the protected work :

11. In UK - computer programs if original literary work and is recorded-protection available Copyright, Designs and Patents Act,1988- doesn’t define computer programming -follows EU Directive- work must be original, author must have expended some skill, labour, judgement, knowledge (or even taste) in creating it Source code, object code, micro code and even data or record structure Protection against copying,adapting and publically distributing the work

12. John Richardson Computers v. Flanders,1993 – same as Altai decision except that abstraction was left out thus – “look and feel” test Ibcos Computers Finance Ltd v. Barclays Mercantile High land Finance,1994 Ibcos Computers Finance Ltd v. Barclays Mercantile High land Finance,1994 – Individual as well as compilations are also protected- Court said under the UK Law “detailed ideas “ than the expressions.

13. CFI vs Tradition, 1999 – ‘architecture’ of program code (program structure)protected if it contains programmer’s skill, labour and judgment Navitaire Incorporation v. Easy Jet Airline Co & ano, 2000- appearance and functionality- no protection as no literary element but interface is protected as it can be viewed as tables

14. Indian Copyright Act,1956 "2. (ffb) 'computer' includes any electronic or similar device having information processing capabilities; (ffc) 'computer programme' means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result*; * * * (o) 'literary work' includes computer programmes, tables and compilations including computer databases; "

15. * implies computer programs are considered as utilitarian work Word ‘expressed’ implies idea / expression dichotomy ‘Form ‘ & ‘medium’ – fixation is requirement ‘words, codes, schemes or in any other form, including a machine readable medium’- protection to both source code & object code Article 10 of TRIPS expressively provides for the protection of program codes(source or object) in the form of literary works Article 9(2) trips reflects about originality – India also follows the same

16. S.14 of the Act enumerates what is copyright It is an exclusive right subject to the provisions, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof namely- 1. Reproduce the work 2. To issue copies to public 3. To perform work & communicate in public 4. Make cinematographic film or sound recording 5. Translation / adaptation 6. to sell or give on hire, or offer for sale or hire, any copy of the computer programme, regardless of whether such copy has been sold or given on hire on earlier occasions

17. Indian Position : protection as “original literary works”- ( the work is to be resulted from the labor & skill of the originator) R.G. Anand v. M/s Delux Films Audience Test : R.G. Anand v. M/s Delux Films,1978 Protection does not strictly end with words implies even for non-literal infringement protection available “ to be see if the reader, spectator or the viewer after having read or seen both the work is clearly of the opinion and gets unmistakable impression(it means only expressions) that the subsequent work appears to be a copy of original” (idea/ expression dichotomy) Both is together implies that court was in favour of the abstraction test in Nichols v. Universal Pictures

18. Court also said” there cannot be copyright in an idea, themes,facts and violation of copyright is confined to form, manner and arrangement and expression of idea by the author of the copyright work”- this statement indicates the amount of filtration where same idea is developed in different manner,… courts should determine whether or not similarities are on fundamental or substantial aspects of modes of expression…”– this indicates the Comparison –in case of literal imitations if the variations are minor and copy is substantial and material which would lead to think it as piracy

19. Indian high courts reluctant to follow it ? sulamangalam R jayalakshmi & ano, v. Meta Musicals, Chennai and ors,2005-mad HC In sulamangalam R jayalakshmi & ano, v. Meta Musicals, Chennai and ors,2005-mad HC followed the G.R Anand V. Delux Films-” sufficient objective similarity” test but couldn’t substantiate ‘objective similarity’ (without the abstraction state-covering program in general) Raja pocket books v. Radha pocket books Raja pocket books v. Radha pocket books,1997,Del HC- ”not only theme is same though represented slightly and somewhat differently,but central idea remains same”-thus flagrant overruling idea /expression dichotomy.

20. Anil Gupta & ano v. Kunal DasGupta & ano,2002,Del HC- Protection of ideas through the words “an idea fledged in adequate detail” is capable of registration under copyright Act-match making TV shows never in public domain and defendants not allowed to appropriate -special disability in field of competition to avoid unfair use

21. Following such decisions would definitely lead to express prohibition on developing competing computer programs same central themed programs would be violating as there would be lot of programs with similar ideas in different levels But G.R.Anand v. Delux Films- the layman’s view to find out substantial similarity -flaw in the test most comprehensive, clear and systematic test Hence forth it is better to follow the Altai Test as it’s the most comprehensive, clear and systematic test so far laid down-But still we have to wait ourselves to see how the Indian Court will react while confronting such a position.

22. By S. Deepika VI sem, LLB(Hons), SLS,CUSAT