COPYRIGHT PROTECTION OF SOFTWARES IN INDIA: CHALLENGES AND EMERGING DOCTRINES

I. Introduction

The legal status of computer software under Indian copyright law has undergone a significant transformation over the past three decades. From initial uncertainty regarding categorisation and scope of protection, the jurisprudence has evolved into a mature—though still imperfect—framework that situates software as a literary work under the Copyright Act, 1957. The statutory inclusion of “computer programme” within the definition of “literary work” has provided the foundational basis for protection, but the nature of software, its functional attributes, and its reliance on innovation cycles introduce complexities unique to the digital environment.

The challenge in India lies in reconciling copyright’s traditional focus on expression with software’s inherent blend of expression and functionality. The result is a jurisprudential landscape marked by doctrinal refinement, restraint, and a growing recognition of non-copyright mechanisms such as contractual controls, licensing practices and trade secret protection.

II. Statutory Foundations: Software as a Literary Work

Section 2(o) of the Copyright Act defines “literary work” to include “computer programmes, tables and compilations.” Section 2(ffc) further clarifies the definition of a “computer programme” as a set of instructions expressed in any form capable of causing a computer to perform a task. As a consequence, software enjoys:

• exclusive rights of reproduction,
• adaptation,
• distribution,
• public communication, and
• commercial rental.

The statutory regime parallels international instruments such as the WIPO Copyright Treaty and TRIPS, positioning Indian law in alignment with global norms. However, the real intricacies emerge in judicial interpretation, particularly where expression and functionality intersect.

III. The Expression–Function Dichotomy

Copyright law protects expression but not ideas, procedures, systems, methods of operation or algorithms. Software routinely implicates these unprotected elements, making courts cautious in delineating the boundary between protectable code and unprotectable function.

Indian courts have consistently declined to extend copyright to:

• programming languages,
• data formats,
• interfaces,
• functional elements of code, or
• algorithms.

The judicial reluctance stems from the fear that granting copyright protection over functional elements could lead to monopolistic control over technological processes, a domain better addressed through the patent system—subject to its own exclusions under Section 3(k) of the Patents Act relating to “computer programmes per se.”

IV. Leading Judicial Precedents

1. Tata Consultancy Services v. State of Andhra Pradesh

Although primarily a taxation case, the Supreme Court observed that software possesses the attributes of “goods,” recognising its tangible market value. The decision indirectly affirmed software’s status as an intellectual and economic asset.

2. Eastern Book Company v. D.B. Modak

This decision, though dealing with edited judgments rather than software, recalibrated the originality standard by adopting the “skill and judgment” test. The doctrine strongly influences the threshold of creativity required in software, particularly regarding derivative works, adaptations, and compilations.

3. Microsoft Corporation v. Yogesh Papat & Others

The Delhi High Court affirmed strong copyright protection for software, holding that unauthorised copying—even in the form of installation—constitutes infringement. The judgment reinforced the legality of licensing restrictions and the role of criminal sanctions.

4. PineLabs v. Gemalto

The Delhi High Court emphasised that infringement requires copying of the programme’s expression, not merely its functionality. Competing software performing similar functions does not constitute infringement unless substantial similarity in expressive elements (e.g., source code, structure, or sequence) is established.

V. Scope of Protection: Source Code, Object Code and Beyond

Indian law protects:

• Source code, as literary expression;
• Object code, as an embodiment of the same expression;
• Screen displays, to the extent they embody creative arrangement;
• Software documentation, including manuals and technical guides.

However, the threshold for protection varies:

1. User interfaces: Protected only insofar as they embody creative choices.
2. Database structures: Protected if there is creativity in selection or arrangement (consistent with Indian courts’ approach to copyright in compilations).
3. Functional modules: Not protected unless they contain creative structuring independent of their functional necessity.

VI. Challenges in Enforcement

1. Difficulty in Proving Substantial Similarity

Infringement often occurs at the level of object code or embedded firmware. Establishing substantial similarity requires expert analysis, access to code, and technical examination. Courts frequently rely on expert evidence, making litigation time-consuming and costly.

2. Reverse Engineering and Interoperability

Indian law does not expressly permit reverse engineering for interoperability. Courts may adopt a cautious approach, balancing legitimate engineering needs against infringement claims. The absence of legislative clarity creates uncertainty for software developers, particularly in sectors requiring compatibility.

3. Digital Piracy and Enforcement Limitations

Software piracy remains widespread due to:

• unauthorised downloads,
• illicit key sharing,
• deployment of cracked or modified versions.

Although both civil and criminal remedies exist under the Copyright Act, enforcement is uneven, and cross-border online piracy presents jurisdictional hurdles.

4. Licensing Complexities

Modern software distribution relies heavily on licensing rather than sale. Breach of licence conditions often overlaps with copyright infringement, raising questions such as:

• When does a breach of licence escalate into infringement?
• Are restrictive licence terms enforceable in consumer environments?
• To what extent can contractual obligations expand or restrict statutory copyright rights?

Indian courts generally uphold licensing agreements, but the jurisprudence remains in development.

VII. Emerging Doctrines and Evolving Jurisprudence

1. Broader Recognition of Non-Literal Copying

Courts are increasingly open to recognising non-literal copying of software, including copying of:

• structure,
• sequence,
• organisation,
• flowcharts,
• architecture.

This doctrinal expansion aligns Indian law with the “structure-sequence-organisation” test recognised in several jurisdictions.

2. Influence of Trade Secret Law

Given the limitations of copyright in protecting functional aspects, software developers increasingly rely on trade secret doctrines through:

• confidentiality agreements,
• internal access controls,
• encrypted codebases.

Courts have shown willingness to protect confidential algorithms and data structures where secrecy and commercial value are proven.

3. Software as a Component of Digital Platforms

With the rise of SaaS models, cloud-based deployment and APIs, copyright claims increasingly intersect with:

• database rights,
• contractual terms of service,
• anti-circumvention provisions under IT law, and
• platform governance norms.

The emerging trend suggests an ecosystem-based approach rather than a code-centric view.

4. Interplay with Patent Law

Although Section 3(k) excludes “computer programmes per se” from patentability, Indian jurisprudence has gradually evolved to allow patents for:

• software embedded in hardware,
• software demonstrating a “technical effect,”
• innovations showing a “technical contribution.”

This interplay influences copyright scope by delineating what may (or may not) be protected through exclusive rights.

VIII. Conclusion

Copyright protection for software in India operates within a delicate equilibrium, shaped by statutory inclusions, judicial restraint and functional realities. While the law clearly protects source and object code as literary expression, the boundaries of protection remain circumscribed by the expression–function dichotomy. Courts have increasingly moved toward recognising sophisticated forms of non-literal copying while carefully preventing the extension of copyright into functional monopolies better governed by patent law.

The emerging doctrinal landscape reflects a hybrid model—one that combines traditional copyright protection, contractual licensing, trade secret safeguards and selective patentability. As India’s digital economy accelerates, the coherence and adaptability of this evolving framework will be critical in sustaining innovation, investment and legal certainty in the software ecosystem.