Testing for Copyright Protection and Infringement in Non-Literal

Abstract

Computer software is one field in which India enjoys a competitive edge over other countries due to a fast growing industry and skilled manpower. One of the forms of protection of intellectual property in software is copyright protection. It has long been recognized that non-literal infringement of a work is also possible. Despite the importance of the software industry, no test has been enunciated in relation to non-literal infringement of computer programs. This article examines US and UK case law relating to non-literal infringement of computer software and the different tests laid down by the courts in these countries. Divergence of judicial opinion as to what is the most appropriate test for non-literal infringement has raised several doubts relating to some of the fundamental tenets of copyright jurisprudence. This article examines applicability of these tests to the Indian context in order to locate an appropriate test for India, in the light of Indian copyright jurisprudence.