Merger, Scenes a Faire and Public Domain : Tests of Source Code Comparison

The appellate court had no issues in upholding the approach adopted by the district court except for the fact that it was preferable to filter out the unprotected aspects of the allegedly infringed program and compare it to the infringing program, not vice versa as the district court had proceeded. The appellate court reasoned that it would be wasteful and unnecessarily time consuming to filter out protectable content from the infringing program that might not be a part of the infringed program.

The Indian Copyright Act, 1957

Placing the Indian copyright jurisprudence on a similar footing as the law laid down above, the copyright Act incorporates express provisions to exclude actions. Section 52 (ab) lays down that any act necessary to obtain information essential for operating inter-operability of a computer program provided that such information is not otherwise readily available; is not a copyright violation. Further, Section 52 (ac) says that the observation, study or test of functioning of the computer program in order to determine the ideas and principles which underline any elements of the program while performing such acts necessary for the functions for which the computer program was supplied is also not a copyright violation.

Cases of this character are tough to adjudicate upon and the courts often find them at a want for experts. While in Altai’s case, Judge Pratt had relied upon the expert evidence of Dr. Randall Davis, Massachusetts Institute of Technology, the Delhi High Court in Campus Eai India Pvt. Ltd. vs. Neeraj Tiwari and Ors. [2019 SCC OnLine Del 8135] had relied upon the Director, IIT-Delhi, as an independent expert. The tests performed and relied upon by the Delhi High Court are essentially the same as those followed in Altai’s case. Considering the constantly increasing source code theft litigation and the changing contours of technology, it would be interesting to follow suit and see the appreciation of evidence of such complex character by the trial courts. After all, the trial courts are the fact finding machine of the justice delivery system.