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Is Source Code Treated As Intellectual Property

Source code can be treated as intellectual property under both copyright law and patent law. [1] Copyright law protects the expression and not functional aspects of source code as a literary work. [2] The Indian Patent Act does not allow patents for computer programs per se or algorithms but a software invention can be patented if it offers a technical solution to a technical problem. [3] Copyright provides faster protection for source code while trade secrets only protect against unauthorized disclosure within an organization and not independent invention.

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Anushree Pawanraj
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45 views2 pages

Is Source Code Treated As Intellectual Property

Source code can be treated as intellectual property under both copyright law and patent law. [1] Copyright law protects the expression and not functional aspects of source code as a literary work. [2] The Indian Patent Act does not allow patents for computer programs per se or algorithms but a software invention can be patented if it offers a technical solution to a technical problem. [3] Copyright provides faster protection for source code while trade secrets only protect against unauthorized disclosure within an organization and not independent invention.

Uploaded by

Anushree Pawanraj
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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Is source code treated as intellectual property (IP)?

Yes, Source code can be treated as an Intellectual Property (Ip), provided Source code or a
program is protected under Copyright law or Patent Act.

Copyright law:
According to copyright Act of India, a program or a software or source code protected under
copyright law is usually regarded as a "literary work", . The unique characteristic of a
program differentiate them from other literary works is their dynamic essence, which
usually includes algorithms or mathematical formulae's or logical condition etc, which
manipulate symbols producing certain virtual or physical effects,etc. Copyright law provides
protection to the software or the computer program´s expression and not the functional
aspects of the software. Hence, computer programs differ from other copyright-able subject
matter, in the sense that the text is not the most important aspect; rather the importance
lies in the functions established by the program code.

Patent:
Indian Patent Act offers patent protection to product or process (if they satisfy various
requirements of patentability) as long as they do not fall under non-patentable subject
matter. Section 3 and 4 of the Indian Patent Act specify a list of subject matter that is not
patentable. Section 3(k) of the Indian Patent Act, which is provided below, is of specific
importance to software innovation.

Section 3(k) states that

3.What are not inventions


(k) a mathematical or business method or a computer program per se or algorithms ;

Even in Europe, "computer programs as such" are excluded from patentability. The EPO
holds that a program for a computer is not patentable if it does not have the potential to
cause a "further technical effect" beyond the inherent technical interactions between
hardware and software.

It is very important to note that a computer program (source code) may not be patentable
as such, but it does not mean that a software invention cannot be patented. One way of
determining whether a software invention will be considered patentable subject matter or
not, is by trying to judge whether the software invention offers a technical solution to a
technical problem known as the technical character. The invention may be consider a
patentable subject matter if the software invention offers a technical solution to a technical
problem. A software invention once patented, will be valid for 20 years .

In contrast to a copyright that protects the expression of the idea, a patent protects the idea
itself. Specifically, an innovator may protect inventions in software, such as the algorithms
performed by the software or the architecture of the software.
Copyright might be beneficial for the software industry because it provides a fast,
inexpensive mechanism for securing intellectual property rights while still allowing the
copyright owners to maintain portions of their source code as trade secrets.

So what are Trade secrets:

In trade secret the scope of protection is narrow. Since it only applies to the group of people
that have confidential access to this information and are obliged to not disclose it. Once the
trade secret becomes public it no longer enjoys the protection. Furthermore, there is no
protection from independent invention and the secret might still be lost or exposed when it
is obtained by reverse engineering the software

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