Computer programs are instructions provided to the computer to perform a certain function. There are many different computer languages of varying complexity but fundamentally all of them can be reduced to the binary language of 1s and 0s.[1] The development in computer language tools have made computer programming a more accessible activity than before, the same changes have however also given rise to far more complex and multi-layered computer programs.

Computer programming is thus complex, time consuming, and involves creativity and skill. This necessitates the work of the programmer to be protected as it would be unprofitable for a programmer to engage in the activity if the language could simply be taken by another to produce the same result. Countries have developed their own unique mechanisms to cope with the unique features of computer programmes with some states providing protection under copyright law, others under patent law and yet others under a sui generis mechanism.

In this paper the researcher will examine the applicability of the tests for determining the infringement of copyright in computer programmes. The researcher will be examining the same from the context of international instruments, the US law and the position in India. The researcher will then examine whether the tests are sufficient to meet the growing complexity of modern computer programmes and also critic the position in India in relation to that of other countries. Another limitation is that it does not examine the operational aspects of computer programmes at depth.

The allied factors like authorship of computer programmes are also outside the ambit of this paper. The researcher also does not delve into the question of copyright law with regards to databases or transmission of files on the internet.

A Brief Overview of Computer Programmes And Their Interaction With Copyright Law

Computer Programming offers unique challenges to the copyright regime. This is due to the fact that certain elements of computer programmes are fundamentally functional in character. Thus there is a great risk that elements that are better suited for patent law will also be protected by copyright.[2]

There has been a gradual consensus among states that computer programmes themselves must be protected by copyright while the apparatus using computer software or software related inventions must be protected by patent.[3] Different states have placed emphasis on copyright law, patent law or a sui generis approach to protect computer programmes to varying degrees.[4]

Modern day computer programming is a complex endeavour involving different types of copyrightable works beyond the computer code itself.[5] In copyright law it is only the expression that is protected and not the idea itself.[6] The possibility to achieve the same result using different approaches makes this dichotomy an important issue.[7] Computer programmes are also more complex in light of their primarily utilitarian rather than literal character.[8]

Computer programmes, unlike other copyrightable works, are often fixated on material objects like Read Only Memory Chips and circuit boards.[9] As a general practice law interprets fixation requirement in a broad manner when it comes to computer programmes.[10]

Then there is the functional differentiation among different classes of software.[11] Lastly there is the question of source code and object code.[12] It is important to note that while all these elements have been held to be copyrightable, the highly complex technical diversity makes it difficult to clearly identify the breach of copyright of one computer programme by another.

Copyright of Computer Programmes in International Instruments

The researcher has examined five major international conventions on copyright law to see the extent to which copyright of computer programmes are covered. These instruments are the Universal Copyright Convention (1952 and 1971), the Berne Convention for the Protection of Literary and Artistic Works (1886) (Berne Convention), the WIPO Copyright Treaty (1996) and the Agreement on Trade Related Aspects of Intellectual Property Rights (1994) (TRIPS Agreement). India has ratified all the international instruments provided here except for the WIPO Copyright Treaty.

The Berne Convention and the Universal Copyright Convention are two of the most fundamental instruments which lay down essential principles of copyright law which all member countries must adhere to for ensuring harmonisation.[13] The Berne Convention requires all Berne countries to provide the same level of protection as that of the Berne country where the work was first published.[14] The Universal Copyright Convention allowed for protection of:
literary, scientific and artistic works, including writings, musical, dramatic and cinematographic works, and paintings, engravings and sculpture.[15]

The primary object behind the Convention was to act as a compromise that the US which had refused to join the Berne Convention will be amicable to.[16] It required the member countries to provide at least the same level of protection as that is accorded in the country where the copyrighted work was first published.[17] Both these Conventions in their original form did not permit the protection of copyright of copyright of computer programmes expressly.[18]

There were however provisions which could be applied indirectly so as to provide a limited degree of protection to computer programme including the right to prevent unauthorised treatment and the nationality principle.[19] To resolve this ambiguity in the Berne Convention amendments were made to the application of Berne Convention by reading in terms related to computer programmes by way of the WIPO Treaty.[20]

The WIPO Treaty extents traditional rights under the Berne Convention by reading computer programme in to Article 2 of the Berne Convention.[21] The rights which got extended to computer programmes include the reproduction right and the right to make it available to the public.[22] The treaty also provides for protection against the circumvention of technological protection devices for controlled access to copyrighted materials and against the removal of electronics rights management system without authorisation.[23]

The TRIPS Agreement however becomes the most specific in terms of rights which are granted to computer programmes. Article 10 of the TRIPS Agreement also treats computer programmes as literary works within the Berne Convention. The TRIPS Agreement provides for the protection of certain specific aspects of computer programme rather than including everything within a broad umbrella. It provides for the inclusion of object and source codes, integrated circuits and semi conductor chips, integrated chips within the ambit of computer programmes and also provides certain specific rights to the author with respect to restricting right of renting commercial programmes.[24]

The standards through which to determine infringement of these rights are to be tested have been left with the state parties. This had led to the domestic law and more importantly the judiciary itself playing a vital role in laying down the tests to assess and not the international instruments.

Tests For Copyright Infringement

There are two ways in which a computer programme can be copied.[25] The first is the literal copying where the code itself is copied by the infringer. The second is that of Non Literal copying where the code is not copied directly but substantial similarity is created with respect to the copyrighted product.[26]

Literal Copying

The problem of literal copying stems from the fact that in many cases there only certain limited number of ways in which a computer can be made to produce a desired result using a specific combination of hardware and software.[27] This compels new programmers tend to build on existing software or develop software that are compatible to the most popular existing software in the market.[28]

This can be problematic as the compatible programmes might borrow essential part the code of the programme or in some cases the whole of the code for the original programme.[29] In such instances it is easy to identify the breach by merely examining the structure of the code itself with the one it has alleged to have breached.[30] At the same time, the Court must take care in ensuring that this protection with respect to compatibility is so restrictive as to make it anti competitive, certain elements of computer programme like the interface specifications will have to copy to make the new program compatible with the market leader.[31]

The test the courts have applied in case of literal copying where the infringer has appropriated substantial part of the copyrighted code, whether source code or object code, into his program.[32] The extent of such copying to constitute substantial breach has varied.[33] The medium and manner in which the infringer copied the other's code is immaterial.[34]

The High Court of Australia in Data Access Corporation v Powerflex Services Pty. Ltd. has held that the essential character of the part copied in ensuring the functionality of Plaintiff's programme is not the sole factor in determining substantial part of copyright.[35] For instance where 127 bits might be the most important part of a code, its absence making the software non functional thereby being an essential feature of the code.[36]

The Court in the Data Access case stressed on the originality test being applied to the parts which were alleged to have been infringed from the Plaintiff's computer programme and not merely whether the part is an essential one. The Court noted that structure, the combination and sequencing of commands and the choice of commands will all be relevant in determining originality.[37]

The reserved words copied were excluded from the ambit of the statute in light of the fact that there was no skill involved in creating the same, as the words were ordinary English words nor were their absence in any way going to impact the functionality of the computer programme.[38] It is important to note that while in the Data Access case, creativity was applied as a criterion to determine originality the Court did not negate the operation of essential element test. The Court only stressed on the essential element which has been copied being original.

Non Literal Copying

Non Literal Elements are aspects of the computer programme other than the written code itself. It is important for a programmer than non literal elements are protected as different lines of code can be invoked to obtain the same programme structure or create very similar user interfaces.[39] There are two different approaches which have evolved with respect to literal copying.[40]

Look And Feel Test

The look and feel test focuses on the method and manner in which the information is presented to the user through the Graphical User Interface.[41] Thus it is based on what is seen by a person on the screen (the audio visual elements) rather than the actual code that is to be examined.[42] The Court first applied this approach for computer programmes in the case of Broderbund Software Inc. v. Unison World Inc. where the computer programme's audiovisual display was held to be copyrightable as it constituted part of the overall programme's structure.[43]

The Court thus granted a broad right to the whole of audio visual displays as well as their sequence and organisation in addition to the code in the programme, going for the total concept and feel of the programme.[44] The most important case where the look and feel approach was examined is that of Lotus Development Corp. v. Paperback Software International.[45]

The court here developed a three step test to determine infringement of copyright – the first is that the court must identify a concept or definition of idea as can be applied to a particular case, something akin to drawing abstraction to separate ideas from expressions, the second step is for the Court to utilise the doctrines of scene a faire and merger to weed out those expressions that are too closely linked to the ideas and the last step is to compare whatever remains of the programmes to identify substantial similarity.[46]

The Copyrightability Of Programming Logic

The second class of cases in non literal copying focus on the code itself rather than the audiovisual displays.[47] The first of these cases is Whelan Associates Inc. v. Jaslow Dental Laboratories Inc..[48] In Whelan, the Court held that the structure, sequence and organisation of the code will come within the protective ambit and not merely the literal part.[49]

The case however made a much criticised decision to bring only the most fundamental underlying function behind the programme, the utilitarian basis of the programme, within the ambit of ideas leaving the rest of the programme as expressions.[50] This approach was questioned as being overly broad in the case of Computer Associates International Inc. v. Altai Inc..[51]

The Court in Altai agreed with the 3rd Circuit that non literal elements in computer programmes should be protected as the same is protected in the case of books, however they concluded that clear scope of such protection must be determined.[52] The Abstraction, Filtration and Comparison Test was developed to crease the flaws in the Whelan case.

In the first stage, the court identifies a threshold of abstraction to resolve the idea-expression dichotomy, in the second stage, the Court limits the scope of the expression determined by the abstraction and in the end, the Court compares whatever is left of both programmes to demarcate substantial similarity.[53]

Unlike Whelan, the Court in this case stressed on identifying the level of abstraction as is appropriate for the breach alleged, at any level between the code itself and the ultimate function of the programme.[54] The filtration test is then invoked to remove the parts of the programme that cannot be protected under copyright law.[55] At the final level the programmes are to be compared for substantial similarity.

This three level process makes the approach of Court very flexible but also structured and comprehensive.[56] The case has been criticised however for thinking from the perspective of what a programmer would want to be covered or left out of the copyright law as well as on the fact that different levels of filtration can dilute the rigour of copyright law.[57]

The third test specifically applied on programming logic is that of the Extrinsic-Intrinsic test. This test was applied to computer programme infringement in the case of Brown Bag Software v. Symantic Corp.[58] It is important to note that this is not a new approach as it has been applied on other audiovisual media.[59] The first phase of the test is the intrinsic test where the Court must objectively consider each of the elements in the copyrighted work and dissect the protectable parts from the ones that are not protected.[60] If the Plaintiff fails at this stage as the parts alleged to be copied are not copyrightable next step does not commence.[61]

In the Intrinsic test the court is to apply its own internal judgment on the look and feel of the remaining parts of the programme to see if there is substantial similarity in it.[62] The Court however did not go into the latter test and thus there is uncertainty as to how the same will apply to computer programmes.[63] The extrinsic test has been criticised on the fact that the court dissects it into individual components and thus fails to examine it wholly, especially as a programme which fails on the extrinsic test never enters the next stage.[64]

Tests Under the Copyright Law For Computer Programmes in India

In India the law of copyright is dealt with by way of the Indian Copyright Act 1957. Computer programmes are included within the definition of literary work under Section 2(o) and is treated as a work in which copyright subsists by way of Section 13.[65] Thus it is clear that a computer programme is accorded the status of a literary work and similar protection.[66] There is however uncertainty with respect to the tests applicable in determining copyright infringement due to the dearth of cases in India on the subject.[67]

With respect to literal copying, Section 2(o) read with Section 13 of the Indian Copyright Act protects original literary works, and thus the test of originality would determine whether or not the code is to be protected. The dearth of cases on literal copying makes an analysis difficult but the application of this principle by the Indian Courts on other literary works is a good indication. The Indian Courts had initially focussed on the mere application of skill or labour as the criteria, following the sweat of the brow approach.[68]

The law of the land at present with respect to originality at present require the work is the standard of creativity and not the mere application of skill or labour or even judgment of the author.[69] Thus it can be said to be highly likely that India will follow the approach of the Australian High Court in the Data Access case to determine infringement of the part of the code of a programme.

When it comes to the question of copyright ability of non literal elements of a computer programme, the lack of cases make it highly difficult to identify the approach of the Courts.[70] However cases where a literary work was converted into another media, like a visual representation, can be used to indicate the possible approach of the Court.[71] Resolving the idea expression dichotomy has been the primary factor when it comes to the approach of the Indian Courts.[72]

The seminal cases indicating the approach which Indian courts can adopt when it comes to copying of non literal elements is the case of RG Anand v. Deluxe Films, which being a decision by the Supreme Court is the law of the land and the latter being the case but its tests have been interpreted differently by subsequent judgements of different High Courts.[73]

In the case of RG Anand v. Deluxe Films, the Supreme Court went for the look and feel approach or the audience test, to see whether a lay man who has seen both works will draw a conclusion that the first work is a copy of the second.[74] The Court however also expanded further when compared to the US Courts by holding that there can be different levels of abstraction and concluded that where the theme is the same but there are different levels of abstraction and presentation using different expressions, then the latter work will not lead to an infringement.[75] The Court also applied the doctrine of merger and a kind of filtration test when it held that certain forms of expression are not copyrightable.[76]

The Court in that case concluded that common theme among the works can lead to similarities in the works and this copying cannot be held to be infringement.[77] While some authors have lauded this case for setting the useful golden standards with respect to copyright of computer programmes, others have criticised the same.[78]

There is also the added fact that this case had nothing to do with computer programmes at all and that for a lay person, the focus will be on the usual interface or screen display or might merge functions of the computer programme with its expression and with modern programmes being inordinately large compared to a play, the process in RG Anand case will have to be refined to fully meet programming requirements.[79]

The High Courts have build on the decision of RG Anand in other cases concerning non literal interpretation, primarily to a visual media like television or cinema. Their approach has been criticised by scholars for focussing on the look and feel test alone leaving aside the abstraction principle.[80] In some cases they have also been criticised for holding that well defined ideas can at times obtain the status of expressions.[81]

Conclusion
The Indian position as it stands today seem to be more aligned to the British system rather than of the US system, thus the Abstraction, Filtration and Comparison test of the Altai case will not be applied in the current scenario.[82] It is also likely that the ordinary observer test will not best suited for the analysis of computer programmes for the reasons provided in the preceding sections.[83]

Some scholars have preferred that the Court must take action on an appropriate case to remove this confusion between the US and UK doctrines, preferably adapting the Abstraction, Filtration and Comparison Test as it is more comprehensive, thorough and designed to deal with infringement of non literal portions of computer programmes, especially as certain elements of the RG Anand case provide a basis to build on the principles.[84] It is also suggested that the Court use different levels of standards for different kinds of programmes, as a cartoon or a video game will involve greater skill and creativity than a table or a word document.[85]

The researcher would like to conclude that Indian copyright law as it stands today is sufficiently equipped to resolve cases of literal copyright. With respect to non literal copyright however the position is unclear, primarily due to the dearth of cases. Thus it is suggested that the court develop unique approach to cope with requirements of programming in light of the developments in other jurisdictions. As the programmes get larger and more complex it is also recommended that technological assistance be utilised to assess substantial similarity as the broader abstractions will not assist in all cases.

Annexure
Annotated Bibliography
Index of Cases
Foreign Cases

1. Ibcos Computers v. Barclays Highland Mechantile Finance Ltd., [1994] FSR 275) (High Court of Justice in England)
   The case concerned with a programmer who developed a programme named ADS when he was in the employment of a company and the allegation that another programme he developed subsequently after leaving the company named Unicorn and its file transfer system was a breach of copyright. This case has been used to indicate the difference between English and US approaches. The English Courts do not place the same degree of importance to the idea – expression dichotomy. It was concluded in this case that idea if well expressed can be treated as if it is an expression
    
2. Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977) (Ninth Circuit Court of Appeals).
   The case concerned the breach of copyright by the Krofft Television Production in their H.R Putsnuf television programme in the advertisement commercial created for Mc Donalds by the company named Needham called McDonaldsland. This case applied the extrinsic intrinsic test and held that while the extrinsic test is objective and aims to identify the areas of copyright breach between the works, the intrinsic test will be whether an ordinary person would find the two works substantially similar. The court concluded that the children who view these projects would find them to be substantially similar. The researcher has used the case to examine the application of extrinsic intrinsic test.
    
3. Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994) (Ninth Circuit Court of Appeals).
   The Plaintiff contended that the Defendant's movie Honey! I Shrunk The Kids was a breach of the copyright held by him in the script – The Formula. The Appellate Court applied the extrinsic-intrinsic test. The Court reiterated that the extrinsic test must be objective and must identify common areas in both medium where the breach can said to have occurred and that the intrinsic test is subjective, based on the indication of what an ordinary would have thought. The Court examined the mood, pace, dialogue, characters, themes, plots, sequence of events are all very different and thus will be disqualified at the stage of extrinsic similarity itself. The researcher has used this case to elucidate the principles of the extrinsic intrinsic test in the paper.
    
4. Brown Bag Software v. Symantic Corp., 960 F.2d 1465 (9th Cir. 1992) (Ninth Circuit Court of Appeals).
   A Programmer named John L Friend developed and sold a programme named PC Outline to Brown Bag Software. The contract of sale had two clauses one restricting Friend from developing a programme that would infringe Brown Bag's newly acquired copyright over PC Outline, the second was that Friend would have non-exclusive access to the source code. Friend later developed another programme named Grandview for Symantec. Symantec marketed this as a rival programme for Brown Bag's. Brown Bag filed a suit alleging breach of copyright. The Court noted that intrinsic tests should be subjective and that expert testimony and analytical dissection is to be used only at the extrinsic test stage.
    
5. Computer Associates International Inc. v. Altai Inc. (23 USPQ 2d 1241) (Second Circuit Court of Appeals).
   This case is instrumental in the development of jurisprudence in relation to infringement of non literal copyright. The case concerned the programme called ADAPTER, the copyright of which was alleged to have been breached by the Defendant in the software OSCAR which served similar functions as ADAPTER. The case became instrumental as the second circuit developed the Abstraction-Filtration-Comparison test to examine infringement of copyright. The case has been used by the researcher to examine the application of this test.
    
6. Whelan Associates Inc. v. Jaslow Dental Laboratories Inc., 230 USPQ 481 (3d. Cir. 1986) (Third Circuit Court of Appeals).
   Mrs. Whelan developed a programme named Dentalab for Jaslow to aid with bookkeeping of their records. The right of the programme was held by the company of Mrs. Whelan named Whelan Associates when the cause of action for this case arose. Rand Jaslow of Jaslow developed another programme named Dentacom which served similar functions as Dentalab but was more compatible with other hardware, this was alleged to be a breach of copyright. In this case the Court recognised the existence of non literal elements but also gave a narrow interpretation as to what part of the programme is an idea. The researcher has used this case to explain the position prior to the Altai case.
    
7. Lotus Development Corp. v. Borland International Inc., 516 U.S. 233 (1996) (US Supreme Court).
   Borland's programme (Quattro Pro) was alleged to have breached Lotus's copyright in the Lotus 1-2-3 programme by copying the menu hierarchy of Lotus. The Court determined that the menu hierarchy was a method of operation and thus could not be copyrighted. The researcher has used the ratio that AFC test will not be appropriate in all cases.
    
8. Lotus Development Corp. v. Paperback Software International 740 F. Supp. 37 (D. Mass. 1990) (United States District Court for the District of Massachusetts).
   This case concerned the breach of the Lotus Development Corp's Lotus 1-2-3 by the Paperback Software and VP Planner. This case has been used by the researcher in the test for copyright in literal elements to identify the three step test it laid down.
    
9. Manufacturing Technologies Inc. v. CAMS Inc. (706 F. Supp. 984 (D. Conn. 1989) (United States District Court for the District of Connecticut).
   This case concerned breach of copyright of multiple generations of programmes to the Plaintiff's own programme. This case has been used by the researcher to bring out the operation of the Look and Feel test with respect to the screen display of both programmes.
    
10. Broderbund Software Inc. v. Unison World Inc., 648 F. Supp. 1127 (N.D. Cal. 1986) (United States District Court for the Northern District of California).
    Broderbund came up with a programme which developed Greeting Cards for the Apple system and went ahead with negotiations with Unison to develop a similar software for IBM. The negotiations failed but Unison came out with a product having similar functionality. The researcher has used the case to provide for the total concept and feel test with respect to structure sequence and organisation
     
11. Autodesk No. 1 v. Dyason (No 1) (1992) 173 CLR 330 (High Court of Australia).
    The case concerned the breach of copyright in a 127 bit look up table code which was copied in the AutoCADkey software from another programme named the Widget C. The court determined that function of the programme determined the Idea and not the Expression and that even a single component could be substantial in terms of the essential element of the computer programme. The researcher has used this case to indicate the stand in the Australian Court prior to the Data Access Corporation case.
     
12. Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 (High Court of Australia).
    This case was a judgement of the Australian High Court in which the High Court refused to reopen the case to deliberate issues which had not been fully examined in the earlier case. The researcher examined the case to build on the principles provided in the earlier case.
     
13. Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd., (1993) 42 FCR 470 (Federal Court of Australia).
    This case concerned a breach of copyright by the Defendant of the Plaintiff Company which was given as part of a contractual arrangement. The case has been used by the researcher as an example to indicate the existence of substantial similarity in even small areas of code based on their functionality to the rest of the code.
     
14. Data Access Corporation v. Powerplex Services Pty. Ltd. [1998] SydLawRw 12 (High Court of Australia).
    This case concerned with the breach of copyright by the Powerplex Services Ltd. of the software developed by the Data Access Corporation. The researcher has used this case for the development of the originality test by which the Court concluded will involve a degree of creativity and not mere use of labour and skill.
     
15. Hubco Data Products Corp. v. Management Assistance Inc. (219 USPQ 450 (D. Idaho) 1983)(United States District Court for the District of Idaho).
    This case concerned the breach of source code of the Plaintiff's programme by the Defendant. This case was used by the researcher to indicate the variations in the quantum of code that must be copied to constitute a breach of literal copyright.
     
16. Williams Electronics v. Arctic Intl., Inc. (215 USPQ 405 (3d Circuit 1982) (Third Circuit Court of Appeals).
    This case concerned the breach of source code of the Plaintiff's programme by the Defendant. This case was used by the researcher to indicate the variations in the quantum of code that must be copied to constitute a breach of literal copyright.
     
17. Midway Manufacturing Co. v. Strohon (219 USPQ 42 (ND III 1983) (United States District Court for the Northern District of Illinois).
    The case concerned the breach of the copyright of the Plaintiff on the Pac-Man character and games in the Defendant's software Cute See to be used in the Pac-Man devices. This case was used by the researcher to indicate the variations in the quantum of code that must be copied to constitute a breach of literal copyright.
     
18. SAS Institute Inc. v. S&S Computer Systems Inc. (225 USPQ 916 (MD Tenn. 1985)(United States District Court for the Middle District of Tennessee).
    This case dealt with the breach of the SAS Institute's software SAS by S&S. The researcher has used this case to indicate the differences in the quantum of literal elements that is required to match substantial similarity.

Indian Cases

1. RG Anand v. Deluxe Films (AIR 1978 SC 1613) (Supreme Court of India).
   The case concerned with the alleged breach copyright of the play by RG Anand in a movie by Deluxe Films. The Supreme Court developed in this case elements of both abstraction and filtration tests before examining both works for substantial similarity. This is one of the most important decisions in India when it comes to infringement of non literal elements of a copyrighted work. The principles elucidated in the judgment have been examined by the researcher to identify how an Indian court will likely interpret non literal elements in a computer programme.
    
2. Eastern Book Company and Ors. v. D.B. Modak and Anr., (2008) 1 SCC 1 (Supreme Court of India).
   This case concerns the breach of copyright held by Eastern Book Company on the Supreme Court Cases software by the Respondent's Grand Jurix software. It was determined in the case that mere application of skill and labour is not sufficient, some creativity must be involved for an expression to be copyrightable. This case has been used by the researcher to indicate the changing interpretation of originality in India.
    
3. Anil Gupta and Anr. v. Kunal Das Gupta and Anr., (2002 (25) PTC 1) (High Court of Delhi)
   The plaintiff came up with an idea for a reality show with a match making theme where women would pick their groom from men who were in the show as suitors. The show was named Swayamwar. Plaintiff provided a concept note of the same to the Defendant and later developed a structure and format for easy implementation. But the negotiations failed. The Defendants launched a soon after named Shubh Vivah. Issue was whether the latter infringed the copyright of the former. The Plaintiff was granted the interim injunction he sought. This case has been used by researcher to indicate the interpretation of certain High Courts that a well defined or detailed idea can become an expression.
    
4. Sulamangalam R Jayalakshmi and Anr. v. Meta musical, Chennai and Ors., (2000) 20 PTC 681 (Madras High Court).
   Suit filed by the Plaintiffs for an interim injunction restraining the Defendants from reproducing the Kandha Sashtl Kavacham and Kandha Guru Kavacham in any media using the name of the Plaintiff No 1 and her sister on the cover and of infringing Plaintiff No 2's exclusive copyright to use the name Sulamanagalam sisters in their media. Injunction was granted as case was made out that copyright had been infringed. The case applied the test of sufficient objective similarity to be made out in the graphical notation, rhythm, music, tune and musical notes of the infringing work. While ragas themselves or the songs themselves could not be copyrighted, when the Sulamangalam sisters composed the song with a particular tune and lyrics it became a musical work. The case has been used an illustration by the researcher of how substantial similarity test for non literal elements can operate in India.
    
5. Raja Pocket Books v. Radha Pocket Books, 1997 (17) PTC 84 (High Court of Delhi).
   Plaintiff created a character named Nagaraj for a graphical novel on which he took a copyright. He filed the suit seeking injunction against the Defendant for promoting their graphic novel with a character names Nagesh. The Court relying on the RG Anand case concluded that there can no copyright in the idea, subject matter, themes or plots of legendary facts and can exist only in the form, manner, arrangement and expression. Court noted that one test for determining substantial similarity is the conclusion that will be drawn by an ordinary reader. The Court noted that where the theme is same but treated sufficiently differently it can constitute a new work. This case has been used by the researcher to indicate the treatment of non literal elements by Indian courts.
    
6. Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber & Anr., 1995 PTC (15) 278 (High Court of Delhi).
   Plaintiff's mail order database which has been copied over three years time was obtained by the Defendant. The Defendant used the information in the data base to build contact with Plaintiff's customers. This was alleged to be in breach of the copyright of the Plaintiff. The issue was whether this compilation could hold copyright and whether the Defendant was in breach of the same. The Court noted that application of labour, skill and labour is sufficient to amount to a literary work. The compilation with the Defendant was held to be substantial similar and injunction granted. This case has been used to indicate the earlier interpretation with respect to what constitutes literary work in India.
    
7. Microsoft Corporation and Anr. v. Mr. S.K Das and Anr., 2013 (56) PTC 335 (Del) (High Court of Delhi).
   This case concerns the piracy of the Plaintiff's software in the Defendant's computer system. This case was intended to indicate the application of computer programme as a literary work in Indian copyright law. The case has been used as an illustration of the dearth of cases dealing solely with copyright law.
    
8. Microsoft Corporation and Anr. v. Ganesh Vakode and Ors., 2013 (54) PTC 282 (Del) (High Court of Delhi).
   This case concerns the piracy of the Plaintiff's software in the Defendant's computer system. This case was intended to indicate the application of computer programme as a literary work in Indian copyright law. The case has been used as an illustration of the dearth of cases dealing solely with copyright law.
    
9. Microsoft Corporation v. Kiran and Anr., 2007 (35) PTC 748 (Del) (High Court of Delhi).
   This case concerns the piracy of the Plaintiff's software in the Defendant's computer system. This case was intended to indicate the application of computer programme as a literary work in Indian copyright law. The case has been used as an illustration of the dearth of cases dealing solely with copyright law.
    
10. Adobe Systems, Inc. and Anr., v. Mr. Mahindra Saxena and Anr., MIPR 2009 (3) 54 (High Court of Delhi).
    This case concerns the piracy of the Plaintiff's software in the Defendant's computer system. This case was intended to indicate the application of computer programme as a literary work in Indian copyright law. The case has been used as an illustration of the dearth of cases dealing solely with copyright law.
     
11. Microsoft Corporation v. Ms. K. Mayuri and Ors. 2007 (35) PTC 415 (Del) (High Court of Delhi).
    This case concerns the piracy of the Plaintiff's software in the Defendant's computer system. This case was intended to indicate the application of computer programme as a literary work in Indian copyright law. The case has been used as an illustration of the dearth of cases dealing solely with copyright law.

Books:

1. Goldstein on Copyright, Vol. 1 (3rd edn., 2007).
   This commentary provides a detailed analysis of copyright law and specifically deals with copyrights over computer programmes in detail. The work focuses on the US position with respect to copyright of computer programmes. The researcher has used the work at various parts of the paper to refer to the challenges faced while attempting to protect the programmes and the development of various tests relating to copyright infringement.
2. Chris Reed, Computer Law (7th edn., 2011).
   This commentary extensively deals with Computer related aspects of intellectual property law including with respect to copyright law. The researcher has used this work extensively in the paper to indicate the development of law relating to computer programmes, impact of international instruments and on the tests of infringement.
3. Epstein on Intellectual Property (5th edn., 2008).
   This commentary deals with intellectual property laws in general and it also provides a detailed analysis of how copyright law applies to computer programmes. The researcher has used the commentary primarily in the parts dealing with the tests for copyright infringement.
4. MMS Kalki, Intellectual Property Rights: Basic Concepts (2009).
   This book briefly examines the basic principles of intellectual property law. The researcher has used this book to indicate some of the complexities surrounding the copyright law on computer programmes.
5. SK Verma et. al.,, Intellectual Property Protection of Computer Software, Legal Dimension on Cyber Space (2004).
   This book by the Indian law Institute provides articles on various legal issues surrounding cyber space. One of the articles is about the Intellectual Property Protection of computer software with the author specifically focusing on non literal elements. The researcher has used this work to identify the non literal elements of a computer programme which are being protected.

Articles:

1. Copyright Protection of Computer Software, WIPO.
   This article is from the website of WIPO and it describes how the different approaches to protecting copyright law (patent, copyright and sui generis) have developed and as to why copyright is the currently preferred approach. The researcher has used the same to indicate the shifting trends of protecting computer programmes.
    
2. Gerald Dworkin, Copyright, Patents And/Or Sui Generis: What Regime Best Suits Computer Programs?, Vol. I, International Intellectual Property Law and Policy (1996).
   This article deals with the evolution of the three approaches to protecting computer programmes – patents, copyrights and sui generis approach. The articles describes how each approach evolved in the US and European jurisdictions and how they lost favour to copyright law. The researcher has used this article to show the trend of development as well as the way in which copyright law has developed with respect to computer programmes.
    
3. K.P Abinava Shankar and Nikhil LR Chary, The Idea – Expression Dichotomy: Indianizing An International Debate, Vol. 3(2), Journal of International Commercial Law and Technology, (2008).
   
   This article extensively discusses on the development of the Idea-Expression Dichotomy with special reference to computer programmes. The researcher has used this article to analyse the development of the tests of copyright infringement as well as the bearing of the dichotomy in Indian context.
    
4. Cynthia A Mellema, Copyright Protection for Computer Software: An International View, Vol. 11(1), Syracuse Journal of International Law and Commerce (1984).
   The article examines the rationale and applicability of international instruments in intellectual property law, namely the Universal Copyright Convention and the Berne Convention, as well as their applicability to computer programmes. The researcher has used this article to show the development of these international instruments and some of their deficiencies.
    
5. Katherine Lippman, The Beginning of the End: Preliminary Results of an Empirical Study of Copyright Substantial Similarity Opinions in the US Circuit Courts, Michigan State Law Review (2013).
   
   This article gives an empirical analysis of the substantial similarity opinions in the US Circuit Courts and the extent to which they have been approved by the other Courts in the system. The article has been used by the researcher to identify the development of the tests for infringement of computer programme, specifically the development of the cases on substantial similarity.
    
6. Yogesh A Pai, Copyright Protection For Computer Programmes: Walking On One Leg?, 48(3), Journal of the Indian Law Institute (2006).
   The author in this article examines the development of the tests for identifying non literal copyright infringement which have developed internationally and also the problems which are faced by the Indian courts in applying the current interpretation of non literal infringement to computer programmes.
    
7. Rod Evenden, Copyright Protection of Computer Programmes in Australia, 7, Computers and Law: Journal for the Australian and New Zealand Societies for Computers and the Law (2001).
   The author in the article examines the development of Australian copyright law with respect to computer programmes using the case of Data Access Corporation v. Powerplex Services Pty. Ltd. The researcher has used this work to examine how the substantial similarity test is to be applied in terms of literal copyright.
    
8. Jeffrey Brill, Computer Programs as Literary Works and as Modes of Operation: A Case Comment on Lotus v. Borland, 74(1), Chicago Kent Law Review (1998).
   The author in this article analyses the case of Lotus v. Borland and the unique interpretation it has given of the Altai case. The researcher has referred to this case to this case to indicate a critique to the AFC test being the norm de rigour.
    
9. David W. T. Daniels, Learned Hand Never Played Nintendo: A Better Way to Think about the Non-Literal, Non-Visual Software Copyright Cases, 61(2), University of Chicago Law Review (1994).
   The article examines the interpretation of Learned Hand with respect to abstraction of non literal elements in other forms of copyright and applies the same to the structure, sequence and organisation of computer programmes. The researcher has used the same to analyse the development of tests of copyright for non literal elements of computer programmes
    
10. Stephen H Eland, The Abstraction-Filtration Test: Determining Non-Literal Copyright Protection for Software, 39(3), Villanova Law Review (1994).
    The author in this article examines the Abstraction-Filtration aspects of the Altai decision and traces its development as well the issues associated with the tests. The researcher has used this article to examine the test and its development.
     
11. Arjun Krishnan, Testing for Copyright Protection and Infringement In Non Literal Elements of Computer Programs, 10, Journal of Intellectual Property Rights (2005).
    The author here examines the test for the infringement of copyright in non literal elements of computer programmes. He examines the positions in the US and UK system and examines the development of non literal test in the Indian context. The researcher has used the work to examine the Indian approach to copyright infringement of non literal components.
     
12. SK Verma, IP Protection of Software and Software Contracts in India: A Legal Quagmire!, 17, Journal of Intellectual Property Rights (2012)
    This article deals with the intellectual law as applicable to both software and software contracts. The researcher has focussed on the parts dealing with software protection under copyright law to examine the applicability of these principles to India.
     
13. Pamela Samuelson. A Fresh Look at Tests for Non Literal Copyright Infringement, 107(4), North western University Law Review (2013).
    This article deals with the tests on non literal copyright infringement which has involved and then provides certain measures by which the tests can be further improved. The researcher has used this article to suggest certain of the measures which can be implemented in the development of effective non literal copyright infringement identification measures

End-Notes:
[1] Ones and zeroes instruct the bits in the micro processors to turn on or off which determine the manner in which the computer will execute its operations.
[2] Goldstein on Copyright, Vol. 1, 10:85 (3rd edn., 2007).
[3] Copyright Protection of Computer Software, WIPO, available at http://www.wipo.int/copyright/en/activities/software.html (last visited on 12.2.2019).
[4] Identifying the most suitable balance legal regime is essential as extremely strong protection can make the regime anti competitive especially considering the comparatively technical and complex character of computer programming and also its applicability. While at present copyright law enjoys the greater popularity there were those who supported the sui generis approach primarily due to the difficulties in applying copyright law to computer programmes without distorting its principles. Sui generis approach eventually lost favour due to difficulties in reaching a consensus and as governments preferred to try and fit computer programmes in the copyright regime. In the absence of an independent legal regime courts too further entrenched copyright law for protection of computer programmes. With respect to patents the regime is a bit more complex as computer programmes as such is not granted patents in most jurisdictions as it is nothing more than a set of instructions while patent is granted for inventions which have been substantially or solely assisted by computer programmes alone.
See Gerald Dworkin, Copyright, Patents And/Or Sui Generis: What Regime Best Suits Computer Programs?, Vol. I, International Intellectual Property Law and Policy (1996).
[5] Chris Reed, Computer Law, 431-432 (7th edn., 2011).
[6] Epstein on Intellectual Property, 11-5 (5th edn., 2008).
[7] Id. at 11-4;K.P Abinava Shankar and Nikhil LR Chary, The Idea – Expression Dichotomy: Indianizing An International Debate, Vol. 3(2), Journal of International Commercial Law and Technology, 129, 131 (2008).
[8] MMS Kalki, Intellectual Property Rights: Basic Concepts, 153 (2009).
[9] Epstein, Supra note 4 at 11-11.
[10] Id. at 11-12. The code whether it is written or printed on to paper and also where it is imprinted or stored on devices like Random Access Memory and Read Only Memory chips, discs, magnetic tapes and similar storage devices will be treated as being fixated.
[11] Id. at 11.13. These include Operating Systems Software which is a set of programs that teach computer how to perform essential basic functions, application software are more specific, intended to engage in certain tasks and of microcode which assist the microprocessors in performing basic functions.
[12] Id.; where source code is the high level language which programmers today use to enter instructions into a computer, the same will be converted into an object code or machine language by a compiler which will be used by the computer in executing the function.
[13] Chris Reed, Supra note 5 at 429.
[14] The Berne Convention has expanded its Moral Rights of copyright holders as provided in Article 6 which is absent as a specific provision in the Universal Copyright Convention.
Cynthia A Mellema, Copyright Protection for Computer Software: An International View, Vol. 11(1), 99, Syracuse Journal of International Law and Commerce (1984).
[15] The US had objected to the differences in terms of protection that is granted to the works under Berne Convention, the abandonment of certain formalities and procedural requirements necessary under US law and the inclusion of moral rights in the Berne Convention.
Cynthia A Mellema, Supra note 14 at 101.

The US however became party to the Berne Convention in 1989 and with 172 countries in the world being parties to the Berne Convention, the Universal Copyright Convention has become far less important in practical application.
[16] US nationals could take advantage of the simultaneous publication clause (Article 3(1)) in the Berne Convention to avail the protection of the Berne regime while similar reciprocity was not being provided by the US.
[17] Id. at 100.
[18] Id. at 102. This led to the result that while certain member countries allowed for computer programmes in their domestic laws, the protection need not have to be extended to a non national if the treaty did not provide for it.
[19] Id. at 104.
[20] Article 1 of the WIPO Copyright Treaty.
[21] Article 2 of the WIPO Copyright Treaty.
[22] Chris Reed, Supra note 5 at 430.
[23] Id. at 430; Articles 11 and 12 of the WIPO Copyright Treaty.
[24] Id. at 429; The right to restrict commercial rental with respect to commercial rentals vest with the author under Article 7 of the WIPO Treaty as well.
[25] There are many ways in which an act which infringes copyright can take place. This could be a primary infringement by copying, making an unauthorised adaptation, issuing or distributing copies of the program to the public of any other action which is restricted by way of copyright. There are also various types of secondary infringement including dealing in infringing copies, facilitating and providing the means for the production of infringing copies or their transmission and of aiding in the circumvention of protection measures.
Chris Reed, Supra note 5 at 449-457.

The tests for infringement of copyright is primarily used only for identifying whether the alleged infringing software breached the rights of the author of the copyrighted program by way of copying or unauthorised adaptation. In other words the tests are important only where two copies exist and not the same product being distributed without authorisation.
[26] There are two major ingredients the Plaintiff must show to avail remedy for breach of copyright. The first is that the Plaintiff is the copyright holder of the work which has allegedly been breached. The second ingredient, having two components, is to show that the Defendant created his work based on the Plaintiff's own rather than independently and that the part copied is not an unprotectable idea or expression.
Katherine Lippman, The Beginning of the End: Preliminary Results of an Empirical Study of Copyright Substantial Similarity Opinions in the US Circuit Courts, Michigan State Law Review, 513, 523 (2013).
[27] Goldstein on Copyright, Supra note 2 at 2-193.
[28] Chris Reed, Supra note 5 at 468.
[29] Id. The doctrines of merger and scene a faire can be used to exclude such extremely limited expressions from the realm of copyright protection.
Yogesh A Pai, Copyright Protection For Computer Programmes: Walking On One Leg?, 48(3), Journal of the Indian Law Institute, 359, 362 (2006).
[30] Goldstein, Supra note 2 at 10:91.
[31] Id. at 10:90.
[32] Id. at 10:91.
[33] The extent to which the other plaintiff's code must be copied to constitute infringement has varied. In Hubco Data Products Corp. v. Management Assistance Inc. (219 USPQ 450 (D. Idaho) 1983)(United States District Court of the District of Idaho), the infringing work was an exact duplicate of the copyrighted programme; in Williams Electronics v. Arctic Intl., Inc. (215 USPQ 405 (3d Circuit 1982)(Third Circuit Court of Appeals) ; eighty five percent of the Plaintiff's object code was copied into the defendants programme; in Midway Manufacturing Co. v. Strohon (219 USPQ 42 (ND III 1983)(United States District Court for the Northern District of Illinois); in SAS Institute Inc. v. S&S Computer Systems Inc. (225 USPQ 916 (MD Tenn. 1985)(United States District Court for the Middle District of Tennessee) the Defendant pervasively copied substantial part of the source code (forty four lines) and also copied organisation and structural details of the Plaintiff's programme. The Court concluded in such a case the Defendant cannot escape liability merely by removing the copied portions of the code. This case is an example of an instance where there was both literal and non literal copyright infringement. The Court dismissed the Defendant's request by stating that it is akin to escaping liability after misappropriating every internal and external feature of a building and then escaping liability by making minor changes to it on being caught.
Id. at 10:91-10:92.
[34] Epstein, Supra note 4 at 11-15. , It will still amount to an infringement whether or not it was from a paper to a CD or from a microchip to a magnetic medium or from a chip to a paper.
[35] Data Access Corporation v. Powerplex Services Pty. Ltd. [1998] SydLawRw 12 (High Court of Australia). It is important to note that the breach alleged in this case was not with respect to source code or object code but rather with respect to the use of reserved words which appeared on the user interface of the software.
[36] Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd., (1993) 42 FCR 470 (Federal Court of Australia). Stress was put on the quality rather than the quantity of work which was being copied. Also in Autodesk No. 1 v. Dyason (No 1) (1992) 173 CLR 330 (High Court of Australia); Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 (High Court of Australia) similar situation arose with respect to a 127 bits look up table.
[37] The Court concluded that as the role of the programme is to express an algorithmic or logical relationship, directly or indirectly, between the function desired to be performed and the physical capabilities of the computer, the factors to be considered for originality will be with respect to this algorithmic or logical relationship.
Rod Evenden, Copyright Protection of Computer Programmes in Australia, 7, Computers and Law: Journal for the Australian and New Zealand Societies for Computers and the Law, 24, 27 (2001).
[38] Id. It can be seen that the High Court abandoned the traditional sweat of the brow approach in favour of an element of creativity in determining whether or not something is original. The majority judgment does seem to imply that if the alleged part is integral in terms of structure, choice of commands and combination and sequencing of commands in the source code, then creativity involved will not be quite as material.
[39] Julian Velasco, The Copyrightability of Non Literal Elements of Computer Programs, 242, (Scholarly Works Paper 392, Notre Dame Law School, 1994) available at http://scholarship.law.nd.edu/law_faculty_scholarship/392 (last visited 12.5.2017).
This approach is problematic as it in effect blurs the line between ideas and expressions. With respect to literal copyright it is easy to identify the expression per se and see the substantial similarity. In non literal copyright the Courts protect certain elements which cannot be as easily perceived and is closer to ideas than they are to codified expressions.
David W T Daniels, Learned Hand Never Played Nintendo: A Better Way to Think about the Non-Literal, Non-Visual Software Copyright Cases, 61(2), University of Chicago Law Review, 613, 615 (1994).
[40] The researcher will be examining from the perspective of US Courts primarily as it has seen the most development with respect to the different tests on non literal copying. While the other jurisdictions too have developed tests of their own either by themselves or by drawing on the US approach, certain fundamental principles have remained consistent through all approaches.
[41] Epstein, Supra note 4 at 11-16.
[42] This is different from the examination of the code itself as a person can produce visually similar graphical display of another programme without appropriating the other programme's code.
[43] Broderbund Software Inc. v. Unison World Inc., 648 F. Supp. 1127 (N.D. Cal. 1986) (United States District Court for the Northern District of California).
[44] Epstein, Supra note 4 at 11-18. In Manufacturing Technologies Inc. v. CAMS Inc. (706 F. Supp. 984 (D. Conn. 1989) (United States District Court for the District of Connecticut) the application was narrowed as the screen displays while copyrightable within the programme also has elements of idea (the information provided on the screen) and the expression, so the Court must filter the expressions in both programmes before comparing them to identify the breach.
[45] Lotus Development Corp. v. Paperback Software International 740 F. Supp. 37 (D. Mass. 1990) (United States District Court for the District of Massachusetts).
[46] Julian Velasco, Supra note 39 at 263-264. The court in the case also rejected the argument that useful articles like the user interface should not be protected by stating that they can be protected if they use expressions which are protected under copyright law.
[47] Epstein, Supra note 4 at 11-27.
[48] Whelan Associates Inc. v. Jaslow Dental Laboratories Inc., 230 USPQ 481 (3d. Cir. 1986) (Third Circuit Court of Appeals) This case is applied mainly in the third circuit. Katherine Lippman, Supra note 26 at 528.
[49] Goldstein on Copyright, Supra note 2 at 2-194. This approach has been criticised in the Lotus Development Corp. v. Borland International Inc., 516 U.S. 233 (1996) (US Supreme Court) case as the Supreme Court in that case had noted that the mere fact that there are multiple ways of achieving the ultimate functionality of software does not mean that all the other elements of the software will not be protected. The case also determined that abstraction, filtration and comparison test will not be as effectively implemented where there are non literal infringements apparent on the face of it. Court must examine individual factors first before implementing the three step test.
Jeffrey Brill, Computer Programs as Literary Works and as Modes of Operation: A Case Comment on Lotus v. Borland, 74(1), Chicago Kent Law Review, 289, 309 (1998).
[50] David W. T. Daniels, Learned Hand Never Played Nintendo: A Better Way to Think about the Non-Literal, Non-Visual Software Copyright Cases, 61(2), University of Chicago Law Review, 613, 622 (1994).
The expression would thus include "the manner in which the program operates, controls and regulates the computer in receiving, assembling, calculating, retaining, correlating, and producing useful information either on a screen, print-out or by audio communication." Id.
[51] Computer Associates International Inc. v. Altai Inc. (23 USPQ 2d 1241) (Second Circuit Court of Appeals). The two problems with Whelan which was bought out was that while it did recognise some level of abstraction in resolving the idea expression dichotomy, there were no clear steps provided on how to go about that. The second was that it covered only the very fundamental levels of generality in determining what should come within the realm of ideas.
[52] Stephen H Eland, The Abstraction-Filtration Test: Determining Non-Literal Copyright Protection for Software, 39(3), Villanova Law Review, 665, 693 (1994).
[53] Id. at 694.
Altai case recognises the fact that multiple ideas can coexist in the same programme both vertically and horizontally whereas the Paperback case only examines the possibility of ideas at vertical levels of abstraction. –
Julian Velasco, Supra note 39 at 276.
[54] Id.
[55] Id. at 695. Some of the expressions excluded from copyright protection includes the ones which are affected by the merger doctrine, those within the class of scene a faire and those that are within the public domain. The court noted that there are several factors which restrict a programmer's creativity and all of these factors may not be copyrightable.
[56] Id. at 699.
[57] Julian Velasco, Supra note 39 at 272.
[58] Brown Bag Software v. Symantic Corp., 960 F.2d 1465 (9th Cir. 1992) (Ninth Circuit Court of Appeals).
[59] Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977) (Ninth Circuit Court of Appeals); Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994) (Ninth Circuit Court of Appeals).
[60] Julian Velasco, Supra note 39 at 267. It is important to note that while individual parts of a work might not be copyrightable the sequence and arrangement of those parts as a whole might still be copyrightable.
[61] Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977) (Ninth Circuit Court of Appeals)
[62] Julian Velasco, Supra note 39 at 268.
[63] Id. at 269.
[64] Id. at 268.
[65] A computer programme is defined under Section 2(ffc) 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. The copyright holder of a computer programme has the all the rights as if it is literary work and also the right to engage in commercial rental of the product (Section 14). Section 52 also excludes certain actions in relation to computer programmes from being infringement; these include lawful adaptation of the work, to make backup copies of computer programmes as a precaution against loss or destruction so long as it is not misused and for the purposes of interoperability.
[66] Microsoft Corporation and Anr. v. Mr. S.K Das and Anr., 2013 (56) PTC 335 (Del) (High Court of Delhi); Microsoft Corporation and Anr. v. Ganesh Vakode and Ors., 2013 (54) PTC 282 (Del) (High Court of Delhi); Microsoft Corporation v. Kiran and Anr., 2007 (35) PTC 748 (Del) (High Court of Delhi); Adobe Systems, Inc. and Anr., v. Mr. Mahindra Saxena and Anr., MIPR 2009 (3) 54 (High Court of Delhi); Microsoft Corporation v. Ms. K. Mayuri and Ors. 2007 (35) PTC 415 (Del) (High Court of Delhi).
All these cases concerned the piracy of the Plaintiff's software by the Defendant and there were no defense made out in most of these cases nor were there any attempt made to prove that the Defendant's software were different from that of the Plaintiff. As such none of these cases have a bearing on the development of literal or non literal infringement of copyright.
[67] Yogesh A Pai, Supra note 28 at 378; Arjun Krishnan, Testing for Copyright Protection and Infringement In Non Literal Elements of Computer Programs, 10, Journal of Intellectual Property Rights, 9, 15 (2005).
[68] Yogesh A Pai, Supra note 28 at 376, Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber & Anr., 1995 PTC (15) 278 (High Court of Delhi).
[69] Eastern Book Company and Ors. v. D.B. Modak and Anr., (2008) 1 SCC 1 (Supreme Court of India)
[70] With respect to the elements that are granted protection in the copyright office, the code is protected as the literary work. The user interface and screen displays and the SSO (Structure, Sequence and Organisation) are also protected as non literal portions.
SK Verma et. al.,, Intellectual Property Protection of Computer Software, Legal Dimension on Cyber Space 168, 178 (2004).
[71] Arjun Krishnan, Supra note 67 at 15-16.
[72] K.P Abinava Shankar and Nikhil LR Chary, Supra note 7 at 136.
While all others are certain that India will follow either the English approach or the US approach. There is uncertainty as to which approach will be taken.
[73] Yogesh A Pai, Supra note 28 at 378.
[74] Arjun Krishnan, Supra note 67 at 15-16; RG Anand v. Deluxe Films (AIR 1978 SC 1613) (Supreme Court of India).
[75] Yogesh A Pai, Supra note 28 at 379.
[76] Id. at 380. The Court noted that There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.
[77] SK Verma, IP Protection of Software and Software Contracts in India: A Legal Quagmire!, 17, Journal of Intellectual Property Rights, 282, 287 (2012). It is important to note that certain other exclusions with respect to computer software which is universally accepted under the copyright domain includes the said expression being part of the industry standard.
[78] K.P Abinava Shankar and Nikhil LR Chary, Supra note 7 at 136 (criticised for failing to distinguish between the UK and US approaches while pointing more towards the UK approach which the authors consider inefficient when compared to the US approach in terms of copyright, this becomes relevant as the British tend to allow for certain ideas to be treated as expressions if they are sufficiently detailed as to be indistinguishable from expressions (Ibcos Computers v. Barclays Highland Mechantile Finance Ltd., [1994] FSR 275) (High Court of Justice in England)) while the US courts have been strict in the idea expression dichotomy; . Yogesh A Pai, Supra note 28 at 381 (praised for laying down the basic requisite standards in terms of programming and while he does acknowledge that it is not the AFC approach of Altai case, the Abstraction and Filtration elements have been invoked and comparison in a way was done).
[79] Goldstein, Supra note 2 at 10:95.
[80] Sulamangalam R Jayalakshmi and Anr. v. Meta musical, Chennai and Ors., (2000) 20 PTC 681 (Madras High Court), sufficient objective similarity test; Raja Pocket Books v. Radha Pocket Books, 1997 (17) PTC 84 (High Court of Delhi), applied the test of the ordinary spectator from the perspective of trademark law; Yogesh A Pai, Supra note 28 at 382-383 (Both cases were criticised for stressing too heavily on the impression test on the ordinary observer on the in general ignoring the expression standard.
[81] Anil Gupta and Anr. v. Kunal Das Gupta and Anr., (2002 (25) PTC 1) (High Court of Delhi); Yogesh A Pai, Supra note 28 at 384 and Arjun Krishnan, Supra note 42 at 16. This principle will be useful for copyright holders as they will be able to protect certain functional features by bringing them within the ambit of well defined ideas. However in terms of the Dasgupta case this well defined idea principle is practically not a grave change as a well defined idea can be taken to mean the expression part alone and not the idea.
[82] K.P Abinava Shankar and Nikhil LR Chary, Supra note 7 at 136
[83] Arjun Krishnan, Supra note 67 at 17. Use of expert testimony by those engaged in the profession, software programmers themselves will be illicit a better opinion as to similarity between software than it would have been the case with a lay person.
[84] Yogesh A Pai, Supra note 28 at 386; It is a good idea to expand the principle of RG Anand to allow for a more thorough engagement and identification of a filtration test to exclude the parts of the code that are not copyrightable and to provide for an effective means of identifying similarities and differentiating factors between the two programmes in question – Pamela Samuelson. A Fresh Look at Tests for Non Literal Copyright Infringement, 107(4), Northwestern University Law Review, 1840 - 1842 (2013).
[85] Pamela Samuelson, Id. at 1843.