Summary
This post examines the historical evolution of intellectual property protection for computer programs in India, particularly before the adoption of copyright and patent laws. It highlights how trade secret law was initially used to safeguard software, relying on confidentiality and contractual agreements. The limitations of trade secret protection, such as its enforceability only against contractual parties and its ineffectiveness against reverse engineering, are critically discussed. The post also explores the impact of technological advances and competition, which led to the unbundling of programs and the inadequacy of trade secret law. It concludes by introducing copyright law as a newer and more suitable alternative for protecting computer programs.
This post was first published on 1st September, 2014.
In continuation to the previous post in the series, we shall now be looking into the system of IP protection for computer programs that existed prior to the adoption of Copyright and Patent Laws.
Though it can be said that Copyright and Patent Laws are the more popular systems of IP protection for computer programs, it was Trade Secret Law that was initially resorted to for the protection of software, primarily because, previously, computer programs bundled with systems, were not sold through retail channels of distribution. Manufacturers could protect their technology through contractual agreements and Trade Secrets. The only requirement for such a protection was that the source code of the software had to be kept confidential.
Protection of software under the Trade Secret law, however, had one major drawback: it could only be enforced against parties to the contract and not against third parties. Moreover, it is not an effective system of protection against reverse engineering of programs, even though the practice of reverse engineering was not prevalent at that point of time. That being said, the applicability of Trade Secret Law can be rendered more effective for the protection of computer programs in the present day by the use of innovative license agreements such as shrink wrap contracts. With the passage of time, computer systems became more versatile and powerful, resulting in the development of customized and general-purpose software in direct competition with products of mainframe manufacturers. Anti-trust pressures resulted in the unbundling of programs and gave way to the development of specialty software that could be installed with little customization to the user’s system. Computer programs could no longer be protected by Trade Secret laws which spurred the need for a different system of protection.
Copyright Law was the newer alternative.
Through the next post in this series, we shall be analyzing the system of protection of computer programs under the Copyright Law.
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