Copyrightability of Computer Programmes as Literary Works
Introduction : Software is often described as a technical product, but copyright law approaches it through its expressive form. A computer programme is made up of instructions written in source code, translated into object code and executed by a computer to produce a result. The fact that code performs a functional operation does not remove it from copyright protection. The legal question is whether the code constitutes an original expression fixed in a legally recognisable form.
Indian copyright law expressly includes computer programmes within the definition of a literary work. This statutory treatment is important because it avoids the need to force software into the traditional meaning of literary writing. The law recognises that code is a structured form of written expression and that the intellectual choices involved in writing it may justify copyright protection.
The protection is not unlimited. Copyright does not protect an abstract idea, mathematical principle, algorithm, programming language, function or technical result merely because it appears in software. It protects the particular expression of those concepts in code, subject to originality and other statutory requirements. The distinction between idea and expression is therefore central to software disputes.
Indian courts have generally treated software as copyrightable where it satisfies the requirements applicable to original literary works. Cases involving Microsoft, Adobe and Autodesk have repeatedly recognised computer programmes as literary works under the Copyright Act 1957. The Supreme Court’s decision in Eastern Book Company v. DB Modak provides the principal standard for originality: the work must involve at least a minimal degree of creativity rather than mere labour or mechanical effort.
Statutory Recognition of Computer Programmes
Section 2(o) of the Copyright Act 1957 defines “literary work” to include computer programmes, tables and compilations, including computer databases. This definition is deliberately broad. It does not limit literary works to books, articles or conventional written language. A literary work may consist of words, symbols, numerical arrangements or code if it is expressed in a material form.
Section 2(ffc) defines “computer programme” as a set of instructions expressed in words, codes, schemes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result.
The definition explains why software is treated as a literary work. Code is a set of instructions expressed through words, symbols and structured syntax. It is recorded in a material form and can be read, analysed, reproduced and modified. Its functionality does not prevent it from being expressive. The statute therefore protects the written programme rather than the abstract task performed by the programme.
Section 13(1)(a) provides that copyright subsists in original literary, dramatic, musical and artistic works. Since a computer programme falls within “literary work,” an original programme is eligible for protection under this provision.
Section 14 identifies the exclusive rights of a copyright owner. For a computer programme, these include reproducing the programme, issuing copies, selling or giving commercial rental of copies, storing the programme electronically, making adaptations and communicating it to the public. The specific inclusion of commercial rental reflects the economic importance of software distribution and licensing.
Section 51 treats unauthorised exercise of the exclusive rights under Section 14 as infringement. Copying source code, reproducing object code, distributing pirated software, loading unauthorised copies into commercial systems or adapting protected code may therefore constitute infringement, unless a statutory exception applies.
Why Code Qualifies as Expression
The argument that software is “nothing but code” does not weaken copyright protection. It explains why the programme can be classified as a literary work. Code is a language-based system through which a programmer communicates instructions to a computer. The instructions may be expressed in source code that is readable by humans or in object code designed for machine execution.
The relevant comparison is not between software and ordinary prose. The comparison is between the legal treatment of different forms of expression. A musical composition can be functional in the sense that it is intended to be performed. An engineering drawing can communicate technical information. A database can organise facts. Their functional purpose does not eliminate copyright where the particular form of expression is original.
Originality and the Applicable Test
Indian copyright law requires originality, but originality does not mean novelty in the patent-law sense. A work does not need to be unprecedented or inventive. It must originate from the author and contain sufficient intellectual creation to distinguish it from a purely mechanical copy.
In Eastern Book Company v. DB Modak, the Supreme Court rejected a purely “sweat of the brow” approach under which labour and investment alone could justify copyright. The Court adopted a standard requiring a minimal degree of creativity or intellectual input. The threshold remains low, but effort without creative choices is insufficient.
Applied to software, the test asks whether the programme reflects independent creation and some creative decision-making. It does not ask whether the code performs a new technical function or would satisfy the patent tests of novelty and inventive step.
A short programme may qualify if its structure reflects original choices. A very long programme may fail to receive broad protection if it consists mainly of routine code dictated by external requirements. Length is relevant to the factual inquiry but is not decisive.
The test may be applied differently to different components:
Source code may be assessed as written expression.
Object code may be protected as a reproduction or version of the source code.
Interface elements may require separate analysis.
Databases may be protected through original selection or arrangement.
Documentation may qualify independently as a literary work.
Algorithms and functionality may remain outside the protected expression.
The originality inquiry therefore operates at the level of the material claimed, not at the level of the entire commercial software product as an undifferentiated unit.
Idea and Expression
The idea-expression distinction limits software copyright. Copyright protects how an idea is expressed, not the idea itself. An abstract concept such as “a programme that matches customers with service providers,” “a system that calculates tax” or “a method for compressing data” is not protected merely because it has been conceived by one developer.
The code implementing the concept may be protected if it is original. A competing programmer may develop an independent programme performing the same function without infringing, provided that the second programme does not reproduce protected expression.
This distinction is difficult in software because functionality and expression are closely connected. Certain tasks may be achievable only through a limited number of coding methods. Where the function dictates the expression, protecting the code too broadly would grant a monopoly over the function. Courts must therefore examine whether the similarity arises from copying expressive choices or from the need to achieve the same technical result.
Source Code and Object Code
Source code is written in a programming language that can be read and modified by programmers. It is usually the clearest form of expression for copyright purposes. It can reveal the author’s structure, choices, comments, organisation and implementation method.
Object code is generated when source code is compiled or translated into machine-readable instructions. It is less intelligible to humans, but it remains a reproduction or transformed form of the programme. Section 2(ffc) expressly includes instructions in machine-readable media, which confirms that protection is not limited to human-readable source code.
The protection of object code is commercially significant. Software is often distributed only in executable form. If copyright protected only source code, unauthorised users could avoid infringement simply by copying and distributing compiled versions. The statutory definition prevents that result.
However, the copyright in object code remains derivative of the underlying programme. It does not create an independent monopoly over the computer’s technical operation. The owner must show that the defendant copied or dealt with a protected programme rather than independently creating software that performs a similar function.
Jurisprudence on Software Copyright
In Burlington Home Shopping Pvt Ltd v. Rajnish Chibber, the Delhi High Court recognised that a computer database and software could fall within the statutory definition of literary work. The case treated software as a form of written expression capable of copyright protection and examined unauthorised copying in the commercial context.
In Microsoft Corporation v. Deepak Raval, the Delhi High Court treated Microsoft software and associated user instructions as original literary works under Sections 2(o) and 13(1)(a). The decision reflects the straightforward statutory position that computer programmes are included within literary works when they are original.
In Microsoft Corporation v. K Mayuri, the Court similarly recognised software as a computer programme under Section 2(ffc) and as a literary work under Section 2(o). Such cases are important because they confirm that infringement can arise from unauthorised reproduction or commercial dealing in software, even where the dispute concerns packaged or executable programmes rather than only source code.
In Adobe Systems Inc v. Mahindra Saxena, the Delhi High Court proceeded on the basis that software programmes fall within the statutory definition of literary work and can be protected under the Copyright Act. The case also illustrates the practical importance of copyright enforcement in software markets where unauthorised copies may be distributed through commercial channels.
These decisions do not mean that every element of software receives equal protection. They establish the category of protection. The scope of protection still depends on originality, identification of the copied material and the distinction between expression and function.
Computer-Related Exceptions
Section 52 provides certain exceptions relevant to computer programmes. Section 52(1)(aa) permits the making of copies or adaptation of a computer programme by the lawful possessor of a copy where it is necessary to utilise the programme for the purpose for which it was supplied or to make backup copies as a temporary protection against loss, damage or destruction.
Section 52(1)(ab) permits the lawful possessor to make copies or adaptation for the purpose of interoperability, subject to statutory conditions. Section 52(1)(ad) permits the making of copies from a personally legally obtained copy for non-commercial personal use.
These exceptions are carefully limited. They do not authorise a lawful purchaser to distribute copies to others, sell modified versions, remove licensing controls or use the software beyond the permitted purpose. They recognise practical uses necessary for ownership or operation while preserving the copyright owner’s commercial rights.
The exception for interoperability is particularly significant because it prevents copyright from being used to block all interaction between independently developed systems. Nevertheless, the person relying on it must satisfy the statutory conditions. It is not a general defence to copying source code or reproducing substantial parts of a programme for commercial competition.
Copyright and Patent Protection Compared
Copyright protects the expression of software code. Patent law, where available, may protect a technical invention implemented through software. The two forms of protection address different subject matter.
A software programme may be copyrightable even when it is not patentable. A patent requires compliance with the Patents Act 1970, including novelty, inventive step, industrial applicability and the exclusions under Section 3. Section 3(k) excludes a mathematical or business method, a computer programme per se and algorithms from patentability.
The phrase “computer programme per se” has generated continuing debate. Indian Patent Office guidelines indicate that computer-related inventions may be patentable where they demonstrate a technical effect or technical contribution beyond the programme itself. The patent question is therefore concerned with the technical character of the invention, while copyright remains concerned with the originality of the code.
A company may hold copyright in source and object code and separately seek patent protection for a technical process controlled by the programme. Copyright cannot be used to obtain patent-like protection over the programme’s underlying idea or function, but patent law does not eliminate copyright in the code.
Conclusion
Under Indian law, a computer programme is copyrightable as a literary work because Section 2(o) expressly includes computer programmes within that category, while Section 2(ffc) defines a programme as instructions expressed in words, codes, schemes or other forms. Sections 13 and 14 then provide the basis for protection and exclusive rights.
The applicable originality test is the standard established in Eastern Book Company v. DB Modak. Software must originate from its author and contain at least a minimal degree of creativity or intellectual selection. Mere effort, investment or functional complexity is not enough.
The protected subject matter is the expression embodied in source code, object code, documentation and original arrangements. Ideas, algorithms, programming languages, functions and technical results are not protected by copyright merely because they appear in a programme. Courts must therefore distinguish copying of code from independent development of software with similar functionality.
The legal framework ultimately rests on a balanced principle: copyright protects the programmer’s expressive code while leaving the underlying field of ideas and functions open for technological competition.
Author: Amrita Pradhan in case of any queries please contact/write back to us via email to content@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
References
Microsoft Corporation v. K Mayuri, 2007 SCC OnLine Del 1213.
Microsoft Corporation v. Deepak Raval, 2006 SCC OnLine Del 1083.
Adobe Systems Inc v. Mahindra Saxena, 2009 SCC OnLine Del 3854.
Eastern Book Company v. DB Modak, (2008) 1 SCC 1.
Copyright Act, 1957, Section 2(o).
Copyright Act, 1957, Section 2(ffc).
Copyright Act, 1957, Section 13(1)(a).
Copyright Act, 1957, Section 14(b).
Copyright Act, 1957, Section 51.
Copyright Act, 1957, Section 52.
Burlington Home Shopping Pvt Ltd v. Rajnish Chibber, 1995 SCC OnLine Del 683.
Microsoft Corporation v. Deepak Raval, 2006 SCC OnLine Del 1083.
Microsoft Corporation v. K Mayuri, 2007 SCC OnLine Del 1213.
Adobe Systems Inc v. Mahindra Saxena, 2009 SCC OnLine Del 3854.
Patents Act, 1970, Section 3(k).
Indian Patent Office, Guidelines for Examination of Computer Related Inventions (2017).
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