Software Protection in India: Copyright or Patent?

Software, in its most basic form, comprises instructions, data, or programs that enable the operation of computers and the execution of specific tasks. It plays a crucial role in enhancing the functionality of computer hardware and improving overall business efficiency. The technological advancements driving industry development heavily rely on software. As computer programs hold market value and are susceptible to unauthorized use, there's a growing need for stringent legal protection. In the digital era, where transactions and work are predominantly conducted online, it is imperative to have legal frameworks in place to safeguard these inventions, deter infringement, and provide legal remedies.

Here the question arises whether the computer software will be protected under Copyright law or patent law?

In India, the patentability of software is a complex and evolving area of law. Traditionally, software per se has been considered not directly patentable. However, the interpretation and application of patent laws can vary, and some jurisdictions have accepted the patentability of certain aspects of computer software.

In India, Section 3(k) of the Patents Act, 1970, explicitly excludes mathematical or business methods or computer programs per se from patentability. However, this exclusion is limited to software in its abstract form and does not preclude the patenting of software-related inventions that have a technical effect.

The Indian Patent Office and Indian courts have granted patents for inventions that involve a novel and non-obvious technical solution or an improvement in a technical field, even if they are implemented through software. The focus is often on the technical contribution or innovation brought about by the software.