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Bharat Kumar

Chennai , Aug. 4

TWO headlines in the last few weeks would have caught the attention of those interested in technology law. "First case under Cyberlaw filed" and "Reuters sues Bloomberg in patent row". Both cases raise interesting points for debate.

The debate over the first case is whether - ironically - the IT Act, 2000 of India is at all applicable.

The second case is over what is actually patent or copyright infringement - is it applicable to brand names alone, or can the method that a certain software uses to operate, be patented?

In the first case, Antares Systems, a Bangalore-based company filed a case against former partner C1 India for allegedly accessing data without permission, and allegedly using that information to come out with a product similar to that of Antares' Tender Wizard Software.

This, Antares claimed, C1 India did using passwords that Antares had shared with it during friendlier times.

According to Mr Na Vijayashankar, author of Cyber Laws for Every Netizen in India, "Antares seems to be relying on the `Copying of Data without permission' mentioned in Section 43. I doubt if this sticks."

Here's why he feels so: The intellectual property rights of software is covered under either copyright of the source code or patent of the process.

The process of e-tendering is a subject matter of patent.

Obviously, Antares does not hold the patent, he said.

Hence, anybody else can develop the same process.

Copyright infringement comes when the screen designs or the words or the source code used are exactly similar in look, feel and content.

Antares needs to prove this, he added.

"The name is normally a subject matter of `trademark' even though the word copyright is loosely used often to refer to it. A phrase can be a subject matter of copyright."

Another opinion is that the IT Act itself may not be applicable.

Mr Vaibhav Parikh, a senior lawyer with interests in patent law globally, with Nishith Desai Associates, said: "The respondents do not seem to have hacked into a system or any such thing. So, this could be a case of `breach of trust'."

Mr Pavan Duggal, the Supreme Court lawyer representing Antares in the case, does not seem to agree with this.

"The subject of copyright is based upon the fact that the law protects the property of those who expend their time, money and energy in developing new original literary, artistic or dramatic works."

He said that when we copyright the software, the entire software stands protected.

Also, if the same is used by anybody without the permission of the owner of the copyright, a violation of intellectual property rights occur, more so when the entire features of the software have been copied.

Referring to the case, he said, "It is impossible to believe that two persons in two different and diverse environments can come up with exactly same features relating to things like electronic tendering."

Antares has filed the case under Sections 43 and 46 of the IT Act 2000.

This section provides for civil wrongs and does not deal with criminal liability.

Mr Duggal said that the respondents have "entered into the plaintiff's computer system, without the latter's knowledge and has copied, downloaded and extracted data".

Mr Parikh also said, "You cannot patent an algorithm, such as Laplace Transforms, but you can patent an innovative business method."

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