INTELLECTUAL PROPERTY RIGHTS AND THE PROTECTION OF SOFTWARE

This Article is written by Anju of Department of Laws, Bhagat Phool Singh Mahila Vishwavidyalya Khanpur Kalan Sonepat, an intern under Legal Vidhiya .

ABSTRACT

Individuals are granted rights over their creative works known as intellectual property rights. For a predetermined amount of time, they often grant the inventor the sole right to utilize their creation. A computer code or program that is legally protected against theft, duplication, and other uses not authorized by the owner is referred to as software intellectual property, or software IP. The business that either created the software or acquired the rights to it is the owner of the software intellectual property. It is against the law for anyone else to use it without permission. A computer code or program that is legally protected against theft, copying, and usage without permission is known as software intellectual property, or software IP. Creatives’ legal rights over their software products are referred to as software intellectual property. Applications The purpose of intellectual property is to provide software creators control over the uses, distribution, sharing, and modification of their creations. Almost everything that is included in software is protected by intellectual property, including user manuals, built binaries, source code, user interface, underlying algorithms, and specific usage practices.

KEYWORDS

Intellectual Property rights, Human Rights, Paris Convention, WIPO, Patent, Copyright, Trademark, Trade secret.

INTRODUCTION

Intellectual property rights refer to the rights to property that are granted by trademarks, copyrights, and patents. For a set amount of time, owners of intellectual property rights have the exclusive right to use certain objects or property. In the 19^th century, the phrase “intellectual property” first appeared in use. It wasn’t included into international legal systems until the 20^th century.

• Intellectual property rights, or IPRs, are the rights that people have over the works of their imagination, including inventions, literary and creative compositions, and names, symbols, and pictures used for commercial purposes. For a predetermined amount of time, they often grant the inventor the sole right to utilize their creation.
• The right to the preservation of material and moral interests resulting from authorship of scientific, literary, or creative achievements is one of the rights stated in Article 27 of the Universal Declaration of Human Rights.
• The significance of intellectual property was initially acknowledged in the Berne Convention for the Protection of Literary and Artistic Works (1886) and the Paris Convention for the Protection of Industrial Property (1883). The World Intellectual Property Organization (WIPO) is in charge of implementing both treaties.

Intellectual Property Rights (IPR) provide authors with exclusive rights to their mental works, allowing them control for a limited time. These include patents for inventions, copyrights for literary and artistic works, trademarks for brand identification, and trade secrets. Article 27 of the Universal Declaration of Human Rights recognizes the right to protect moral and pecuniary interests derived from creativity. The Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886) were ground-breaking agreements that recognized IPR. The World Intellectual Property Organization (WIPO) administers these rights, which promote innovation, creativity, and economic progress. Intellectual property (IP) refers to mental creations such as inventions, literary and artistic works, designs, symbols, names, and pictures that are exploited commercially. Intellectual property is protected by legal rights such as patents, copyrights, trademarks, and trade secrets, which give creators or owners exclusive control. This framework promotes innovation and creativity by offering incentives and protection, ensuring that individuals and organizations can profit from their unique ideas, creations, and innovations for a certain period. The term “software IP” refers to the legal rights that software producers hold over their creations. Software Intellectual property exists so that the authors can control how their software is used, shared, changed, and distributed. Intellectual property encompasses almost everything in software, including source code, generated binaries, user interfaces, underlying algorithms, user manuals, and processes and routines for using specific software.

INDIA AND IPR

The Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement) is something that India has committed to as a member of the World Trade Organization.

India is a participant in the World Intellectual Property Organization, an organization tasked with advancing global intellectual property rights protection.

India is also a party to the following significant international treaties and conventions pertaining to intellectual property rights that are overseen by WIPO. These are :

• I Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure
• Paris Convention for the Protection of Industrial Property
• Convention Establishing the World Intellectual Property Organization
• Berne Convention for the Protection of Literary and Artistic Works
• Patent Cooperation Treaty
• Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks- Madrid Protocol
• Washington Treaty on Intellectual Property in respect of Integrated Circuits
• Nairobi Treaty on the Protection of the Olympic Symbol
• Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms
• Marrakesh Treaty to facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities.

TYPES OF INTELLECTUAL PROPERTY PROTECTION   APPLICABLE TO SOFTWARE.[1]

Although each country’s intellectual property laws are unique, there is some broad agreement in the types of legal protection that can be granted.

• PATENTS :  [2]Exclusive Right for Specific Inventions . Patents protect original inventions, ideas, or processes and require annual government renewal payments. They also grant exclusive rights for a limited time. The government gives inventors monopoly privileges known as patents, which are typically valid for 20 years. One of the earliest IP categories acknowledged by contemporary legal frameworks is this one. A patent grants an investor the right to keep others from making, utilizing, importing, selling, or offering their invention for sale while the patent is still in effect. Patents are territorial rights, meaning that an innovation is only protected in the countries or regions where they have been awarded. Put another way, if a patent is deemed invalid in a certain country, the innovation will not be protected there and can be made, used, imported, or sold by anyone else. A patent is a type of intellectual property protection given to the creator of a new, innovative, and practical method, apparatus, product, or combination of materials. It usually refers to novel and inventive algorithms, techniques, or software-implemented systems, and it gives the patent holder the only authority to make use of, market, or Issue licenses for the patented creation for a certain amount of time. It can be compared to an invention prize that declares, “I thought of this first.” It is possible to patent new types of algorithms in software. To safeguard their own approach to organizing search results, Google, for instance, may be able to patent their search algorithm.
• TRADEMARKS :  [3]A Guarantee of Origin A trademark is a distinctive indication, symbol, or signal that businesses, people, or other legal entities use to identify the products or services they offer to customers. In reality, a group of accountants and doctors might have collective markings that they can use. The legal safeguards afforded enable owners to control who has access to their property. They may essentially advertise their goods and services without worrying about competitive expenses thanks to it. This helps customers identify genuine products and services. A trademark can be any three-dimensional symbol, letter, number, colour, image, or sign. It also features colours, holograms, sounds, and even the forms and containers of flavours and aromas.  A trademark cannot simply be a trademark, nor can it simply meet the requirements to be eligible for registration. Trademarks provide distinctive identities for goods and services while protecting phrases, colours, sounds, and designs. A trademark is a symbol, word, phrase, or design that serves to identify and set one software source apart from another. It guarantees that customers can recognize the program’s origin or brand and helps to avoid confusion in the marketplace by legally protecting the brand name, logos, or slogans connected to the software. Software trademarks are perpetually valid as long as they are used and as long as they serve as a source identifier for the program or associated services. A trademark can be thought of as a unique label or emblem that declares, “This product is made by us.” It could be a distinctive moniker or emblem for software. For instance, Adobe’s “Photoshop” name and logo are trademarked, therefore other businesses are not permitted to use them on their goods.
• COPYRIGHT : [4]Exclusive Rights to All Creative Works Copyrights defend the expression of ideas by safeguarding creative works such as written content, music, and art. Authors’ rights over their works are collectively referred to as intellectual property under copyright law. The creative output for which a copyright has been secured may encompass literary, artistic, scientific, musical, cinematic, or photographic mediums. Furthermore, certain rights safeguard the interests of everyone involved in the creation, including broadcasters, sound recorders, performers, and producers. The primary goal of copyright law is to strike a reasonable balance between the rights of investors, innovators, and content creators and the public’s freedom to access and use creative works. The protection of intellectual property under copyright has a time limit. After an author passes away, their copyrights for works created after January 1, 1978, are still in force for 70 years. The usual work owned by a small firm, “made for hire” works, have a 95-day copyright expiration. Copyrights for software are essentially statements along the lines of “I made this, so I get to decide how it’s used.” Copyright law restricts who can copy, sell, or alter software created by you. For instance, Microsoft Word’s code is copyrighted, which means that without Microsoft’s consent, no one else is allowed to sell or legally duplicate the program.
• INDUSTRIAL DESIGN : Industrial design protection concentrates on the mechanical, aesthetic, or visual features of a product. This becomes even more crucial given the abundance of consumer products with comparable capabilities that are readily available on the market. A design typically comprises of three-dimensional elements, such as the surface and shape of the item or product. If not, it might have two-dimensional characteristics like lines, patterns, or colour. As with other attributes, they have to be unique and creative. However, original artworks are not insured because they are manufactured industrially.
• GEOGRAPHICAL INDICATIONS : : A geographical indicator is a label applied to goods that have a particular geographic origin, a certain reputation, and particular qualities as a result of that origin. The primary purpose of these tags is to serve as an authenticator. By establishing standards, it preserves the product’s reputation and denotes its quality. A geographical indication’s ownership cannot be changed.
• TRADE SECRET : A trade secret might be any important company information. The company secrets are not to be known to the rival. The types of information that can be safeguarded as trade secrets are unlimited; examples include financial forecasts, marketing plans, operational procedures, and recipes. If it gives its owner a competitive advantage and is not known to the public, even something as simple and untechnical as a client list can qualify as a trade secret. It is not necessary for a trade secret to be complicated or distinctive. Trade secrets can be permanently protected as long as they are valuable commercially, have value solely from their secrecy, and are owned by their owner and reasonably maintained. Trade secrets, which are exclusive methods, procedures, or formulas that are kept under wraps, give businesses a competitive advantage.

WHAT IS PROTECTION OF SOFTWARE?

Protection of Software is also known as Software IP , is a piece of computer code or software that has legal protection against theft, duplication, and other uses not authorized by the owner. The business that either created the software or acquired the rights to it is the owner of the software intellectual property. It is against the law for anyone else to use it without permission.Software can involve many forms of intellectual property, be the result of years of effort and financial commitment, and have a substantial value. It is crucial to take action to safeguard it as a result. The following are the primary intellectual property rights that apply to software and provide specific protection for different software components:

• Patents safeguard the operation of things. You cannot obtain a patent for software alone in the UK or inside the European patent system, of which the UK is a member. A patent for a software-controlled device is not permitted; yet, many patents are obtained for software controlled devices. For example, the technology that allows you to compress a file is covered by numerous patents, which offer protection regardless of the code that is used to implement the invention.
• It becomes more crucial to rely on the law of confidential information (or trade secrets, which are really a subset of confidential information) if obtaining patent protection is difficult. Software companies used to take legal action to prevent people from decompiling software in order to obtain their source code, and they also withheld it from public access. Their most valuable asset was the source code, which they were determined to keep private. Source code is now easily accessible (often at a high cost), as both the law and the times have changed. Trade secrets, however, may still be important if software protection is desired.
• A vital component of the software industry is copyright. Ideas are not protected by copyright law; only their expression is. This means that while basic ideas or techniques are not protected by copyright law, a software program’s source code can.
• Correct database. An extra degree of security can be added by thinking of a program as a database thanks to modular programming techniques.
• Although the appearance of real objects is often the focus of designs, it has long been recognized that an icon on a screen can also be covered by a registered design.

HOW CAN SOFTWARE BE PROTECTED AS INTELLECTUAL PROPERTY?

COPYRIGHT

Software is considered a literary work under copyright law. It turns out that this is not as strange as it seems; in fact, it makes perfect sense in the copyright universe. Anything that is written, spoken, or sung qualifies as a literary work, unless it’s a musical or dramatic piece. According to the law, “writing” is defined very broadly to encompass any type of notation or code. It is possible to see computer programs differently, yet at their core, they are all composed of written code.

For copyright reasons, a program may also be a database or compilation, particularly if it is assembled in a modular form. The most intriguing thing is that database rights may also apply, though this is far from definite and most likely does not greatly increase the owner’s rights. If this is the case, there aren’t many changes with regard to copyright because databases and compilations are also literary works.

Not what a program accomplishes when it runs on a device—copyright latches on to the code that a program is written in (and protection extends equally to object code and source code or any other written representation of the program). Copyright holders are the only ones who are allowed to do specific activities with their work, such as making copies for public distribution and duplicating it. You have the right to sue someone for damages and an injunction to prevent them from performing any of these acts with your copyright program or a significant portion of it without your consent.

PATENT

Is software patentable? Both yes and no. Patents for pure software Inventions, no matter how inventive, would violate the fundamental rule that a patentable invention must have a technological effect. To emphasize the point, although software cannot be issued a patent on its own, those two words allow programs to have some indirect protection. Software may be used in an invention to accomplish a technological advance.

TRADEMARKS

Software companies are no different from other businesses in the importance of trademarks, which serve to identify them and set their products apart in the marketplace. They don’t protect the code per se, but what they do safeguard is the brand, which is a valuable asset that should be treated with the same care as any intellectual property. If your business is international, you will find that most countries only protect trademarks through registration, so you will need to make sure yours are fully protected at least in key markets. Trademarks can be protected by the owner suing for passing off, but it is always better to register them.

REGISTERED DESIGN

For many years, computer icons, screensaver visuals, and graphical user interfaces have been among the goods for which designs can be registered. In order for someone with experience in the industry to remark, “I’ve never seen that before, and it’s different from anything in that field that I have seen,” your design would need to be original and, most all, have unique character. The ease and affordability of registration stems in part from the fact that applications are not reviewed beyond the most fundamental procedures. This implies that your registered designs may be cancelled in the event of a dispute, but considering the cost, it’s a risk you’re willing to take.

TRADE SECRET

Such other organizations, software companies have a lot of trade secrets, whether they are related to their products or to day-to-day operations (such client lists). Contracts of employment, freelance agreements, and licenses for software and other intellectual property all frequently safeguard confidential information of all kinds. A non-disclosure agreement will be useful when someone is interested in purchasing your company and wants to know about any internal business or technical concern.

DATABASE RIGHT

In addition to copyright, you may also be protected by database rights if a program is likely to be regarded as a database—a collection of discrete works, data, or other items organized in a systematic or methodical manner and individually accessible by electronic or other means. In any event, it is strongly tied to software protection because the data that your program operates on most certainly fits that description.

WHAT ARE THE RIGHTS THAT SOFTWARE AUTHORS IMMEDIATELY AWARDED?

Software intellectual property is automatically protected by copyrights and trade secrets. However, trademarks and patents need to be applied for and are not always granted. A trademark is registered at the national level, as is a software patent. Even while you are capable of doing it yourself, I would advise most people without legal experience to hire attorneys to complete the applications to the appropriate patent and trademark offices in each nation where you are looking for intellectual property protection.

HOW IS SOFTWARE IP COMMONLY STOLEN?

A few common ways that software intellectual property rights are violated are as follows:

• Piracy : Illegal copying, distribution, or usage of software without proper authorization or consent from the owner. This is the most popular method of software theft, and it’s usually offered on dark web platforms, social media, USB devices, and torrent sites.
•  Reverse Engineering: breaking license agreements by disassembling or decompiling software in order to get and duplicate its source code, algorithms, or features. If the attacker has access to the binaries, there isn’t much that can be done to prevent software intellectual property from being reverse engineered by a determined attacker who knows assembly.
• Code Theft by Insiders: Workers or contractors who have access to the source code of the software pilfering or disclosing it for their own benefit or giving it to rival companies. This kind of behaviour has severe consequences, but demonstrating it without the right protections in place is not so simple.
• Breach of Contract or NDAs: Parties who are legally bound by contracts or non-disclosure agreements (NDAs) disclosing software IP in violation of these agreements. This is similar to theft from insiders.
• Hacking and Cyberattacks:  breaking into a company’s network without permission in order to steal intellectual property, such as software code. This is becoming more frequent, particularly with supply chain attacks by persistent threat actors targeting software.
• Unauthorized Access through Insecure Networks: using networks or security systems with holes in them to access proprietary applications.

CONCLUSION

Fundamentally, software is an IP product. The primary source of protection is copyright law, but other intellectual property rights are  equally significant, and software protection requires the same comprehensive approach as other industries. The software industry is built on intellectual property and agreements, so you’ll want to make sure you have the best advice on your company’s IP position and its standard documents. This includes making sure contractors’ copyright is made available to you on acceptable terms, controlling what employees and ex-employees can and cannot do, and allowing customers to use your software on terms of your choosing.

• Probably the most valuable asset in your software company is the intellectual property.
• Software intellectual property is frequently used illegally through piracy and other channels.
• As a vendor, you can protect your interests by taking a number of reasonable precautions, even if securing your software intellectual property comes with many hurdles.
• Fight the impulse to use your software IP protection campaign to penalize your paying clients by making their lives miserable.

REFERENCES

• https://licensespring.com/blog/guide/software-intellectual-property-protection/#How%20Software%20IP%20Is%20Commonly%20Stolen
• https://www.questel.com/resourcehub/how-to-protect-software-intellectual-property/
• https://harperjames.co.uk/article/protecting-ip-rights-in-software/
• https://www.upcounsel.com/intellectual-property-software
• https://www.taazaa.com/software-ip/
• https://www.studyiq.com/articles/intellectual-property-rightsipr/?utm_source=google&utm_medium=cpc&utm_campaign=21182511351&utm_term=______m&utm_content
• https://www.wipo.int/about-ip/en/

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[1] https://licensespring.com/blog/guide/software-intellectual-property-protection/#What%20is%20Software%20Intellectual%20Property?

[2] Ibid

[3] ibid

[4] ibid

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