The Hindu Business Line : By the same ruling...

A judgement from London's High Court of Justice on a book, in the context of The Da Vinci Code, has some bearing on the Indian software scene, it appears.

This decision is important for Indian software firms, says a lawyer and partner at Arnold & Porter, a UK-based law firm.

Raja Simhan T.E.

Many of you might have read The Da Vinci Code by Dan Brown and likely are following the controversies sparked off by the book keenly. But would you think the book and rulings over it might have any bearing on the Indian software industry?

In London's High Court of Justice, Justice Peter Smith ruled that the authors of The Holy Blood and the Holy Grail were not entitled to the protection of the law in relation to the idea and expression of its central themes — which were `significantly reprised' by Brown in The Da Vinci Code.

Parallels with software

This decision is important for Indian software firms, says Murali Neelakantan, a dual qualified (Indian and English) lawyer and partner at Arnold & Porter, a UK-based law firm.

Can the creator of a work, which deals with the same themes and ideas, but goes about expressing some of them in a different way, avoid prosecution? Well, the English High Court now appears to have answered "yes", he says in an e-mail communication from London.

Now a product can be the copy of another, but methods and processes can, in the eyes of the law, make it different and copyright law will also protect the product, he says.

"The parallels with software are clear. If I can develop a product which looks the same, feels the same but is ... code-based, which is largely my own, then I could be infringing someone's US patent but I am not in breach of European copyright laws," he says. It is comforting that laws in Europe continue to recognise the unique benefits of being inventive and hard-working, something that rings parallels with the Japanese revolutionising manufacturing and making it their own, says Neelakantan.

In the US, companies are given the right to patent-protect their software and business processes. This allows the holder of the patent to commercialise the product (and, more importantly the idea behind the product) as a monopoly right for many years.

Indian firms could be sued for infringement, even if they generate completely different code independently of the patented software. Many contracts have provisions where the software supplier indemnifies the customer for intellectual property infringements and in most cases this liability is unlimited. This means that a successful claim (as in the Blackberry case, where RIM settled with the patent holder for a reported $613 million) could bankrupt most Indian IT companies.

However, the same does not exist in the EU. Existing copyright laws are the only protection software developers are afforded in respect of their products.

That means if a company actually copiessoftware code rather than the design, idea or concept, then in all likelihood, the company will be infringing the holder's rights.

There are limits of course, says Neelakantan. One cannot protect ideas because they are conceptually too nebulous. There is a grey area, however, and it is this grey area that The Da Vinci Code decision has clarified, he says.A better example that would be relevant to Indian IT companies would be situations that they currently face with application and development projects that give them the vast majority of their current revenues. The risk that the code they develop could infringe a US patent is huge, especially since they will be unaware of the existence of the patent. Whereas, so long as they have not copied the code, they are unlikely to infringe copyright of similar software in Europe.

`It applies to copyright law'

Subu D. Subramanian, Senior Vice-President, Satyam Computer Services Ltd, says the Da Vinci case relates to copyright law, not patent law. Different laws apply to copyrights and patents. A general principle in IP jurisprudence that applies to both copyright and patent laws is that only facts are to be protected, not ideas, which principle the Da Vinci judgment embodies.

The importance of the Da Vinci case and resultant judgment lies in the interpretation and reiteration of applicable copyright law from a legal perspective, he says.A copyright protects the actual contents (typically relating to look and feel) within a literary or artistic work, i.e. the actual wording in the case of a literary work or the substantive portion of the image in the case of a painting or a photograph. Copyright laws are essentially aimed at preventing copying of the work itself and whilst each country has separate copyright laws, most of these laws are in accordance with the Berne Convention.

A patent protects substantial improvements in the function (typically relating to operational aspect) of tangible items. For example, Polaroid cameras that generated instant pictures as against conventional cameras with rolls that needed to be developed separately. Patent laws are essentially aimed at ensuring commercial profit given the creation of the work and are different for each country.

Software code is protected only as a copyright in India. In a jurisdiction such as the US,a patent for software code is also possible under certain circumstances, he says.As a company that provides services, much of the IP generated by Satyam is work for hire wherein clients own the IP in the work that Satyam creates. Consequently, the Da Vinci judgment in itself does not impact the company's outlook on the Europe market from a business perspective, he says.Vaibhav Parikh, Head of Technology Law Practice, Nishith Desai Associates, a legal and tax consultant, feels there is a parallel between the ruling and the Indian software industry, which can take advantage of this. However, he adds this concept has been prevailing for a long time.

Giving a different perspective related to a popular television game show Kaun Banega Crorepati hosted by Amitabh Bachchan on Star, Parikh says Star channel paid licence fee to copy the format of `Who Wants to be a Millionaire'.

However, a Hindi channel picked up the same concept with different format and had Govinda as the host, and there was no violation of any copyright, he says.

raja@thehindu.co.in

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