Interpretation of Statutes

RULE OF LITERAL CONSTRUCTION

The rule of literal construction is considered to be the first principle of interpretation. According to this rule, the words of an enactment are to be given their ordinary and natural meaning, and if such meaning is clear and unambiguous, effect should be given to a provision of a statute whatever may be the consequences. This rule can be easily understood under the following headings

A. Natural and grammatical meaning,

B. Explanation,

C. Exact meaning, preferred to lose meaning,

D. Technical words in technical sense.

1- Natural and Grammatical Meaning

The words of a statute are first understood in their natural, .ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there IS something in the context or m the object of the statute to suggest the contrary.

Viscount Haldane, L.C., says that if the language used has a natural meaning not depart form that meaning unless, reading the statute as a whole, the context directs us to do so.[1]

In the words of Lord ATKINSON. "In the construction of statutes, their words must be interpreted in their ordinary grammatical sense unless there be somethll1g in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used In a special sense different from their ordinary grammatical sense.

In the words of Lord BROUGHAM, "The true way is to take the words as the legislature have given them and to take the meaning which the words given naturally imply, unless where the construction of those words IS, either by the preamble or by the context of the words In question, controlled or altered.,,[2]

The Supreme Court has held that the principle of ironing out the creases does not justify rewriting a clause or doing violence to its language. Grammatical construction leading to absurdity or Injustice IS to be avoided only If language admits of such construction.[3]

In the case of Suthendran v. Immigration Appeal Tribunal[4] section 14 (1) of the Immigration Act, 197 I was under construction. It provided that a person who has a limited leave under this Act to enter or remain in the U.K. may appeal to an adjudicator against any variation of the leave or against any refusal to vary It: The words 'a person who has a limited leave were construed not to Include a person "who has had" such limited leave and It was held that the section applied only to a person who at the time he lodged his appeal was lawfully in the u.K. that is in whose case leave had not expired at the time of lodgment of appeal.

In Municipal Board v. State Transport Authority[5], Rajasthan2 the Regional Transport Authority had changed the location of a bus stand. If anyone wanted to move an application against this order, he could do so within thirty days from the date of order to the Regional Transport Authority under s. 64-A of the Motor Vehicles Act, 1939. But in this case, the application was moved to the State Transport Authority after the expiry of thirty days from the date of the order. Here it was argued that an application could be moved within thirty days from the knowledge of the order passed by the Regional Transport Authority. The Supreme Court held in that case that whenever languages of a statute is plain and unambiguous, meaning should be given to It Irrespective of the consequences and while interpreting statutes of limitation, equitable considerations are out of place and clear grammatical meaning of the enactment should stand.

In Jugal Kishore Saraf v. Raw Cotton Co. Ltd. the Supreme Court applied the rule of literal construction in interpretation of Order 21, Rule 16 of the Code of Civil Procedure, 1908 and held that the said provision contemplates actual transfer of a decree by an assignment in writing after the decree is passed, S.R. Das said about the rule of literal construction that the cardinal rule of construction of statutes is to read the statutes literally i.e., by giving to the words their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the court may adopt the same. But if no such alternative construction is possible, the court must adopt the ordinary rule of literal interpretation. In the-present case the literal construction led to no apparent absurdity and therefore, there could be no compelling reason for departing from the golden rule of construction.

In Ramavtar v. Assistant Sales Tax Officer[6]the question before the court was whether the sale of betel leaves was subject to sales tax. The contention given by the appellant was that betel leaves being vegetables were not subject to sales tax. The appellant relied on the dictionary meaning of vegetable which says that a vegetable is that which is pertaining to, comprised or consisting of, or derived, or obtained from plants or their parts. The Supreme Court rejected the contention and held that betel leaves could not be given the dictionary, technical or botanical meaning when the ordinary and natural meaning is clear and unambiguous. Being a word of everyday use it must be understood in its popular sense by which the people arc conversant with it as also the meaning which the statute dealing with the matter would attribute to it. Therefore, the sale of betel leaves was liable to sales tax. While interpreting section 6 of the Prevention of Corruption Act, 1947

in S.A. Venkatraman v. State[7] the Supreme Court held that sanction is not' necessary for taking cognizance of the offences' referred to in that section if the accused has ceased to be a public servant on the date when the court is called upon to take cognizance. The, court rejected the construction that the words 'who is employed-and is not removable' as they occur in clauses (a) and (b) of section 1 mean 'who was employed-and was not removable' and in clause (c) the words 'competent to remove him from office' mean 'would have been competent to remove him from his office'. It was held that in construing the provisions of a statute it is essential for a court to give effect to the natural meaning of the words used therein, if those words are clear enough.

The Supreme Court held in a case that the words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. The Supreme Court was construing section 3 of the Calcutta Theka Tenancy Act, 1949 which laid down the grounds on which a theka tenant could be ejected and section 5 (1) which prescribed that 'a landlord wishing to eject a theka tenant on one or more of the grounds specified in section 3 shall apply to the controller'. It held that the grounds of ejection specified in the Calcutta Theka Terancy Act, 1949 did not apply to those cases where a decree had already been obtained.

In Shriram v. State of Maharashtra[8] the Magistrate considering the report against the appellant under s. 173 of Code of Criminal Procedure, 1898 did not, examine any eye-witnesses cited by the prosecution. The Sessions Court convicted the appellant and the High Court confirmed it. Appellant argued in appeal before the Supreme Court that the act of the Magistrate committing him for trial was illegal because the Magistrate had not examined the witnesses as was required under s. 207 A (4) of the Cr. P.c., 1898. Section 207-A (4) said that the Magistrate should take the evidence of such persons, if any, as may be produced by the prosecution as eye-witnesses to the commission of the offence and if he was of opinion that it was necessary to take the evidence of any other witnesses, he was do so. The Supreme Court, however, rejected the argument and held that the use of the word "shall" imposes a duty on the Magistrate but that duty was limited to the witnesses produced by the prosecution as was apparent from the language of the section. Witness produced and witnesses cited are two different things and should not be confused with each other. The use of the words 'if any' in the section suggests the fact that the prosecution was at liberty not to produce any eye-witnesses in which case the Magistrate was under no duty to examine any witness. .

The observation of DAS GUPTA J also deserves to be noted. "The intention of the Legislature has always to be gathered by words used by it, giving to the words plain, normal, grammatical meaning. If the strict grammatical interpretation gives rise to an absurdity or inconsistency such interpretation should be discarded and an interpretation which will give effect to the purpose the legislature may reasonably be considered to have had, w1l1 be put on the words, if necessary even by modification of the language used.

A departure from the rule of literal construction outside the recognized limits in the guise of liberal or strict construction leads to unwarranted expansion or restriction of the meaning of words and gives rise to serious errors, The Nagpur High Court, while construing the M.P. Abolition of Proprietary Rights Act, 1950 which in clause (g) of section 2 defined 'Home-Farm' as meaning 'land recorded as Sir and Khud Kast in the name of a proprietor in the annual papers for the year 1948-1949', held that this definition should be construed liberally and that land though not recorded as Khud Kast of the proprietor in the annual papers of 1948~ 49 but which ought to have been recorded as such, was within this definition.

This decision was overruled by the Supreme Court. It held that the basis for treating a particular land as home-farm under the Act "was the record and not the fact of actual cultivation." It was pointed out by the Court that there is no ambiguity about the definition of 'home-farm' and so the question of strict or liberal construction does not arise.[9]

The case of Kartar Singh v. State of Punjab[10] is relevant to be considered here as it gives the view of majority regarding the departure from rule of literal construction when it is permissible. Majority was of the opinion that though normally the plain ordinary grammatical meaning of an enactment affords the best guide and the object of interpreting a statute is to ascertain the intention of the Legislature enacting it, other methods of extracting the meaning can be resorted to if the language is contradictory, or ambiguous or leads readily to absurd results. Similarly, where a literal interpretation leads to absurd or unintended result, the language of the statute can be modified to accord with the intention of Parliament and to avoid absurdity.

Modified form of the principle of grammatical interpretation is the rule known as 'Golden Rule'. As observed in Sussex Peerage case. The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to explain the words in their natural and ordinary sense, The words themselves alone do, in such cases, best declare the intention of the law-giver.

Golden Rule

This rule is regarded by Lord Wensleydale as the 'Golden Rule' for the interpretation of statutes. Lord Wensleydale has observed in the case of Grey v. Pearson. [11]In construing statutes, as in construing all other written instruments, the grammatical and ordinarily sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity or inconsistency, but no further."

The observation of Lord Brougham regarding the respect of the judges for the words of the statute is also pertinent here. His Lordship observed while delivering the judgment in Crawford v. Spooner The construction of an Act must be taken from the bare words of the Act. We cannot fish out what possibly may have been the intention of the Legislature. We cannot aid the Legislature's defective phrasing .of the· statute. We cannot add and men and by construction make up deficiencies which are left here.... The true way in these cases is to take the words as the legislature has given them and to take .the meaning which the words given naturally imply unless where the construction of those words is either by Preamble or by the context of the word in question or altered. And, therefore, if any other meaning was intended than that which the words purport plainly to import then let another Act imply the meaning and supply the defect in the previous Act."

In the words of Viscount Simonds, L.c., "The Golden Rule is that the words of a statute must prima facie be given their ordinary meaning".15 Natural and ordinary meaning of the words should not be departed from unless it can be shown that the legal context in which the words are used requires a different meaning.

Few cases can be considered here. First is that of M. Pentiah v. Veeramallapa [12] in which the respondents were elected members of a municipal committee under the Hyderabad Municipal and Town Committees Act, 1951 repealed by the Hyderabad District Municipalities Act, 1956. The Act of 1956 provided that the committee constituted under the previous Act would continue till the first meeting of newly constituted committee under the new Act of 1956. The old committee continued for more than three years because no elections were held. Three years was the maximum period for a committee under the Act of 1951. The appellant wanted to have a writ of quo warrant. The Supreme Court held that if more than one construction were possible then the one which was narrower and failed to achieve the object of the Act should fail. The Act should be so interpreted as to avoid absurdity. In this case as the Committee constituted under the old Act continued even after the expiry of three years maximum period because new committee was not constituted under' the new Act,. it was held that the members of the committee automatically cease to be members after the expiry of period of three years.

In Suthendran v. Immigration Appeal Tribunal [13] (facts have already been noted), Lord Simon gave a modern statement of the rule when he said, and “Parliament is prima facie to be credited with meaning of what is said in an Act of Parliament. The drafting of statutes, so important to a people who hope to live under the rule of law, will never be satisfactory unless courts seek whenever possible to apply 'the golden rule of construction' that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good sense, so that when such an approach produces injustice, absurdity, contradiction or stultification of statutory objective the language may be modified sufficiently to avoid such disadvantage, though no further.

2- Explanation of the rule

When it is said that words are to be understood first in their natural, ordinary or popular sense, It Is meant that the words must be ascribed that natural, ordinary or popular meaning which they have in relation to the subject matter with reference to which and the context in which they have been used in the statute.

In the statement of the rule "the epithets 'natural', 'ordinary', 'literal', 'grammatical' and 'popular' are employed almost interchangeably" to convey the same idea.

In determining the meaning of any word or phrase in a statute the first question to? asked is:--what is the natural and ordinary meaning of that word or phrase In Its context in the statute? But when that natural or ordinary meaning indicates such result which cannot be opposed to have been the intention of the Legislature, then we have to look for some other possible meaning of the word or phrase which may then convey the true intention of the Legislature. In the construction of statutes, the context means the statute as a whole, the previous state of the law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy.

Every word apart from having a natural, ordinary or popular meaning, often has a secondary meaning too which may be for e.g., either technical or scientific. This secondary meaning is less common than the ordinary meaning. But once, when in the process of interpreting a statute, it is accepted that the natural, ordinary or popular meaning of a word is derived from its context, the distinction drawn between different meanings loses significance.

In Commissioner of Sales Tax, M.P. Indore v. Jaswant Singh Charan Singh[14] the Supreme Court in construing the word 'coal' in a Sales Tax Act applied the popular meaning test.

What would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word? In answer to this test it was held that coal will include charcoal as well not only coal obtained as a mineral. In Colliery Control Order it was said that the word 'coal' will be understood in its technical or scientific sense and will include a mineral product but not charcoal. therefore, It was held that as the Collieries Control Order deals with collieries the term coal as used their includes coal as a mineral product but in the context of sales- Tax Act 'coal will include in the natural, ordinary, popular sense the coal used as a fuel.

In Motipur Zamindary Co. Ltd. v. State of Bihar[15] O the question arose whether the sugarcane fell within the term green vegetables in Entry 6 of the Schedule of Bihar Sales Tax Act, 1947 for purposes of sales tax. The Supreme Court held that while dealing with a taxing statute the natural and ordinary meaning of a word should be the correct meaning. The word green vegetables in its popular sense include vegetables that can be grown in the kitchen garden and can be used for eating during lunch or dinner. Therefore, sugarcane does not fall under this category.

Similarly, green ginger,[16] chilies and lemons[17] have. been held to be, vegetables while coconut has been held to neither 'fresh fruit' nor 'vegetables ‘and watery: Coconut is neither green fruit nor dried fruit.[18]

Similarly, in construing the Uttar Pradesh Sale Tax Act, 1948 it was held that tooth powder is a 'toilet requisite,[19] and power loom cloth is not 'cloth manufactured by the mills. In Andhra Pradesh General Sales Tax Rules, 1957 the words 'Livestock, that is to say all domestic animals, will not include 'chicks' construing in the popular sense although in literal sense animal refers to any and every animate object as distinct from inanimate object.

The Supreme Court referred to the rule that it is not the technical or scientific sense but the sense as understood in common parlance that generally matters in construing statutes and held that 'supari' or betel nut though derived and prepared out of the usufruct pf the Areca-palm tree and is not for that reason 'fruit product' within Rule 29 '(f) of the Prevention of Food Adulteration Rules 1955.[20]

In Forest Range Officer v. Khushboo Enterprise [21] the question was whether C sandal wood oil is wood-oil as used in the definition of forest produce in section 2 (f) of the Kerala Forest Act, 1961 which defines forest produce to include 'timber, charcoal, wood-oil' whether found in or brought from a forest or not. Sandal wood oil is produced at a factory level by mechanized process utilizing the hard wood and roots of sandal wood trees removed from forest as a raw material. It f was argued before the Supreme Court that wood oil is a natural produce of the forest derived as on exudation from living trees in the forest belonging to the family of Diptero carpucoe trees and it will not include sandal wood oil which is a by-product from sandal wood by industrial process. But this argument was rejected by the Supreme Court and it was pointed out that the object of the Act was to conserve forest wealth and there was no indication in the Act to exclude what was ordinarily and in common parlance spoken of as wood oil. Therefore, it was held that the sandal wood oil was wood oil within the definition of forest produce.

In Bhagwandas v. Union of India [22] it was challenged that tax on house property levied by sections 4, 14 and 23 (2) of the Income Tax Act, 1961 being not within Entry 82 of List 1 relating to taxes on income other than agricultural income were not within the Union Parliament's power but were within the competence of the State Legislature under taxes on land and buildings in Entry 49 of List II. But the Supreme Court held that the word income in Entry 82 of List 1 includes income of every kind mentioned under the Income Tax Act, 1961 and IS therefore, within the 'power of the Union Parliament. Therefore, income on house property is not a tax under Entry 46 of List II under State Legislature.

In Bimal Chand v. Gopal Agarwal [23] a notification was issued by the State Government under section 3 A of the D.P. Sales Tax Act, 1948 according to which tax was fixed at two percent of the turnover payable at all points of the sale in the case of cooked food. The appellant firm which was manufacturer and as well as seller of biscuits for human consumption claimed to come under this notification as biscuit was also a cooked food. But Supreme Court rejected this contention and held that the words used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force. When an expression is capable of a wider meaning, then the question whether the wider or narrower meaning should be accepted depends on the context. Ordinarily, biscuit is not a cooked food and, therefore, it cannot be taxed under this notification.

It was held that the words 'profits and gains' when used in an Income Tax Act should be understood in a sense which no commercial man would misunderstand.3? In the same way, expressions 'borrowed money' or' 'capital borrowed' when used in Income-Tax Act have to be understood in commercial sense implying a transaction of loan with relationship of borrower and lender.38 Similarly, it was held that the word 'investments' in section 23 A of the Income-Tax Act, 1922 was to be construed in the popular sense and was not limited to investment in shares, debentures, stocks etc. But included investments in house property or other income yielding property also.[24]

Justice Frank Further has justified the rule that the words are to be understood in their natural, plain meaning, or ordinary or popular sense in the following words:

"After all legislation when not expressed in technical terms is addressed to common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed.

3- Exact meaning preferred to lose meaning

The third important point regarding the rule of literal construction is that exact meaning is preferred to lose meaning in an Act of Parliament. In Prithipal Singh v. Union of India it was held that there is a presumption that the words are used in an Act of Parliament correctly and exactly and not loosely and inexactly.

Lord Heward CJ while ascribing to the word 'contiguous' its exact meaning, I.e., touching , in preference to Its loose meaning ·i.e., 'neighboring' observed, "It ought to be the rule, and we are glad to think that it is the rule, that words are used in an Act of Parliament correctly and exactly and not loosely and inexactly.

Upon those who assert that the rule has been broken, the burden of establishing their proposition lies heavily and they can discharge it only by pointing to something III the context which goes to show that the loose and inexact meaning must be preferred.

Every word has a secondary meaning too. Therefore, in applying the above stated rule one should be careful not to mix up the secondary meaning with the loose meaning. Loose meaning should not defeat the secondary meaning 'of a word. Wherever the secondary meaning points to that meaning which statute meant, preference should be given to that secondary meaning. But preference to secondary meaning does not offend the rule that preference should not be given to lose meaning. Example can be taken of the word 'obtain'.

‘ Obtain’ in Its primary sense requires some request or effort to acquire or get something but in its secondary meaning It means to acquire or get without any qualification and If In a statute the secondary meaning is preferred, it cannot be said that preference has been given to lose meaning.

3- Technical words in technical sense

The fourth important point regarding the rule of literal construction is that technical words are understood in the technical sense only. Few relevant points regarding this are following:

A. Special meaning in trade. Business etc.-Lord Esher MR has stated that if the Act is one passed with reference to a 'particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows and 'understands to have a particular meaning' in it, then the words are to be construed as having that particular meaning. In Union of India v. Ganvare Nylons Ltd, [25] it was held that as a necessary consequence of the principle that words are understood in their ordinary or natural meaning in relation to the subject-matter, in Legislation relating a particular trade, business, profession art or Science, words having a special meaning in that context are understood in that sense. Such a special meaning is called the technical meaning in order to distinguish it from the more common meaning that the word may have.

The Supreme Court also "has consistently taken the view that, in determining the meaning or connotation of words and expressions describing an article in a tariff schedule, one principle which is fairly well settled is that those words and expressions should be construed in the sense in which they are understood in the trade by the dealer and the consumer. The reason is that it is they who are concerned with it, and, it is the sense in which they understood it which contributes the definitive index of legislative intention.[26]

For example, in deciding cases related to manufacture of a product the question to be asked is that "How is the product identified by the class or section of people dealing with or using the product? It is generally by its functional character that the product is so identified."

When a word acquires a particular meaning in the trade or commercial circles that meaning becomes the popular meaning in the context and, therefore~ -that should normally be accepted.

In construing the word 'practice' in Supreme Court Advocates (Practice in High Court) Act, 1951, PATANJALI SHASTRI, c.J., observed; 'The practice of law in this country generally involves the exercise of both the functions of acting and pleading on behalf of a litigant party; accordingly when the legislature confers upon an advocate 'the right to practice' in a court, it is legitimate to understand that expression as authorizing him to appear and plead as well as to act on behalf of suitors in that Court.[27]

In Union of India v. Delhi Cloth & General Mills Co. Ltd. [28] the question was of excise duty on 'refined oil'. It was held that purification of raw oil in the process of manufacture of Vanaspati where deodorization is done after hydrogenation does not at any stage transform the oil into refined oil as known to the consumers and commercial community because in commercial world oil is always deodorized before it is marketed as refined oil. Here Supreme Court considered the evidence of manufacturers of refined oil and the specification of refined oil by the Indian Standards Institution.

In another case, while construing item 8 in the Schedule to the 'Minimum o Wages Act, 1948 which reads 'Employment in stone breaking or stone crusting' it was found that the commercial world took this to mean activity by which common rock is reduced to fragments by mechanical means-such fragments being marketed and used or profit.48 In the same case, the removal of thick layers of limestone by breaking for reaching the thin layers which are cut into flooring· stones and are marketed as such has also not held to be stone breaking or stone crushing operation in commercial sense.

B. Legal sense of words.-By legal sense of words we mean that when words acquire a technical meaning because of their consistent use by the legislature in a particular sense or because of their authoritative construction by superior courts, they are understood in that sense when used in a similar context in subsequent legislation. When a word acquires a special connotation in law, then dictionaries also cease to be helpful in Interpreting that word. However, the context of the word may indicate that the legislature intended to use the word in its literal sense and not in its legal sense.

The following observation of Lord Macnaughten is pertinent here. His Lordship said ‘in construing Acts of Parliament, It is general rule that words must be taken in their legal sense unless the contrary intention appears.

The View of VENKATAAMA AIYER, J., should also be noted here. Explaining the principle of construction he observed: "The ratio of the rule of interpretation that words of legal Import occurring In a statute should be construed in their legal sense is that those words have, in law, acquired a definite and precise sense and that, accordingly, the legislature must be taken to have intended that they should be understood In that sense. In Interpreting an expression used in a legal sense, therefore, we have only to ascertain the precise connotation which it possesses in law.

In construing item 2 of Schedule III to the Payment of Bonus Act, 1965 in Workmen of National and Grindlays Bank Ltd V. National and Grindlays Bank Ltd.,. It was held that the words working funds when used in the context of a banking company must be understood in the 'technical sense which they have acquired m that context. Sen. A ward of 1949 and Sastri A ward of 1953 were referred here. It was, therefore, construed that the words 'working funds' mean paid up capital, reserves and average of the deposits for 52 weeks of the each year for' which weekly returns of deposits are submitted to the RBI.

In Gordhandas Hargovindas v.. Municipal Commissioner, Ahmedabad [29] the Supreme Court In dealing with, section73 of the Bombay Municipality Boroughs Act,,1925 which authorized, a municipality to impose a rate on buildings or lands held that the word rate should be construed In a technical sense because it had acquired a special meaning to connote a tax imposed by local authorities on the annual value which is arrived at by one of three modes namely;

Ø actual rent fetched;

Ø where it is not let, 'rent based on hypothetical tenancy and,

Ø Where either of these two modes is not available by valuation based on capital value.

It was also held that the rate could not be imposed at a percentage of capital value I·..~ though it could be imposed on a percentage of annual value derived from capital value.

Conclusion

It has been held that the intention of the legislature may not always be to Use a word or expression in its legal meaning or sense. Rather it may be to use it in its natural or literal sense. In the English case of Jones v. Tower Boot Co. Ltd . Section 32 of the Race Relations Act, 1976 (U.K.) provides that acts of racial discrimination done by a person 'in the course of his employment' shall be treated as done by his employer as' well as by him, whether or not it was done with the employee's knowledge or approval. In the law of torts, the words 'in the course f of employment' have a technical or legal meaning relating to vicarious responsibility. As that meaning of the words in section 32 would have severely restricted!

Its operation and largely frustrated the object of the Act to prevent racial discrimination, the words in question were given their nature everyday meaning in Interpreting section32.

---

[1] - Attorney general V. Milne, (1914-15) All ER Rep. 1061, p. 1063 (HL)

[2] - Crawford v. Spooner,. (1846) 4 MIA 179

[3] - R. Rudraiah v. Stale of Karnataka. e 199R) 3 see 23: AIR 1998 se 1070.

[4] (1976) ALL ER611

[5] - AIR 1965 SC 458

[6] -AIR 1961 SC 1325

[7] -AIR 1958 SC 107. P. 109

[8] - AIR 1961 S.C 674

[9] - Haji S. K. Subhall v. Madhwrao, AIR 1962 S.c. 1230, pp. 1236, 1238.

[10] -. (1994) 3 S.c.c. 569, 645; 1994 S.c.c. (Cri) 899; 1994 Cri LJ 3139

[11] -(1857) 6 HLC 61, p. 106: 10 ER 1216, p. 1234.

[12] - AIR 1961 SC 1105

[13] - (1976) 3 All ER 611, p. 616 (HL).

[14] - AIR 1967 S.C. 1454, p. 1457.

[15] - . AIR 1962 S.c. 660.

[16] - State of W. Bengal v. Washi Ahmed. AIR 1977 S.c. t638; .1977 S.c.c. (Tax) 278.

[17]- Mongulu SahLI Ramachari Sahu v. Sales Tax Officer, GunJam AIR 1974 S.c. 390.

[18] - Shri Bharauch Coconut Trading Co. v. Municipal Corpn. Ahmedabad. AIR 1991 S.c. 494.

[19]- Sarin Chemical Lab v. Commissioner of Sales Tax. V.P.. AIR 1971 se 65

[20] -. Dinesh Chandra Jamnadas GandhiV. State ofGujarar. AIR 1989 se lOll, p. 1017.

[21] - AIR 1994 SC 120. p. 124.

[22] . AIR 198] SC 1656

[23] - AIR 198] SC 1656

[24] - . Nawab Estates (P.). LId. v. Commr. of Illcome-Ttu, W. Bengal, AIR 1977 SC 153, pp. ]56, 157

[25] - AIR 1996 SC 3509, p. 3512.

[26] - . Indian Aluminum Cables Ltd. v. Union of India, (1985) 3 see 284, p.290; AIR 1985 se 1201.

[27] - Ashwini Kumar Ghose v. Arabillda Base, AIR 1952 se 369, p. 373.

[28] - . AIR 1963 se 791.

[29] - . AIR 1963 se 1742, p. 1749.

Intellectual Property Law

A critique on computer programming and international copyright.

Introduction

Until recently, copyright was not regarded as being of much relevance to the sale of products other than traditionally "artistic" products such as books and gramophone records. Today, however, in addition to these traditional areas, copyright has become an extremely important weapon in preventing piracy of computer software and preventing copying of various useful items to which "art" has been applied. In this section, we shall consider the application of the Copyright Act to computer software. The Copyright statute provides copyright protection for original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Subject to certain provisions relating to "fair use", the Copyright Act gives the copyright owner exclusive rights over the reproduction, preparation of derivative works, distribution and public performance and display of the copyrighted work.

It is not necessary to take any particular steps once a work has been created and "fixed in tangible form" for copyright to exist, although as noted above, in many cases it will be necessary to register a copyright in a work before one can proceed with an action for infringement of it. Once it exists, for works created after January 1, 1978, copyright, in general, lasts for a period of seventy years from the death of the author, or in the case of joint works from the death of the last-to-die of the authors of the work. In the case of works made for hire, however, protection runs for a period of ninety five years from publication or one hundred and twenty years from its creation, whichever comes first.

Unlike the patent statute, there is no statutory provision for an action for contributory infringement of a copyright by providing an actual infringer with the necessary equipment or materials to make a copy of a copyright work, the courts have recognized the existence of such a right. In order to succeed, however,, the Supreme Court in Sony Corporation of America v. Universal City Studios held it is necessary to demonstrate that there are no "substantial non-infringing uses" of the materials or equipment in question. The issue of contributory infringement lies at the core of the dispute between the music recording industry and Napster Inc. Napster provides a service through which users can, through the Internet, download music recordings that were resident on computers of any other person who was logged on to Napster's site at the time. This is done by software on the Napster site which searched out computers on which the requested piece of music was present. The recording industry regards this as being harmful to it as being likely to reduce the legitimate sales of its recordings. The industry argued that by providing this service, Napster was contributing to the actual infringement of the copyright in a musical work that occurred when that work was down-loaded. In response to a motion for a preliminary injunction, the district court judge rejected Napster's claims that there were substantial non-infringing uses and also analogies to taping of films broadcast in television which has been held by the Supreme Court to be permissible as a fair use in the Sony case, at least when done to enable the viewer to watch the film at a more convenient time. The Ninth Circuit Court of Appeals immediately stayed the injunction and ordered an early oral hearing of Napster's appeal against the injunction on the ground that the appellant had raised "substantial questions of first impression going both to the merits and the form of the injunction."

A basic principle laid down by the Supreme Court in the case of Baker v. Selden in 1879 is that there is no infringement of copyright in using or copying something if such copying or use is the only way for putting a particular idea into practice. Copyright protection is available only for a particular expression of an idea, not for the idea itself. (The case related to a book explaining a new system of bookkeeping and including certain blank forms). In that case, it was held that for the position to be otherwise there would be a grant of a monopoly "when no examination of its novelty had ever been officially made which would be a surprise and a fraud upon the public." The protection of ideas was to be a matter of Letters Patent not copyright. Indeed Section 102(b) of the USA Copyright Act 1976 specifically provides that In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery regardless of the form in which it is described, explained, illustrated or embodied in such work.

What copyright protection does give to the owner is a bundle of particular rights that are to some extent dependent on the type of work involved. As noted below, case law has classified computer software as falling within the statutory definition of copyrightable subject matter as literary works, although some manifestations of the software may be protectable as audio-visual works.

Literary works are defined as works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.

The bundle of rights given to the owner of copyright in literary works is the rights to control:

1. Reproduction of the work,

2. Preparation of derivative works,

3. Distribution of copies of the work,

4. Public performances of the work and

5. Public display of the work

Computer software as literary work

It is a well-established proposition that computer programs are copyrightable subject-matter, just like any other literary work. Loading a program into computer memory, saving the program or running it without authority may infringe copyright. Making an arrangement or altered version of the program or converting it into or out of one computer language or code into a different computer language or code is also an infringement.

Article 10 of the Trade Related Intellectual Property Rights Agreement (TRIPs) expressly provides that computer programs, whether in source code or object code shall be protected as literary works under the Berne Convention, 1971. The relevant provisions of the Copyright Act, 1957 which are pertinent in this context are set out hereunder:

"2. (ffb) 'computer' includes any electronic or similar device having information processing capabilities;

(ffc) 'computer programme' means 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;

* * *

(o) 'literary work' includes computer programmes, tables and compilations including computer databases; "

Section 14 explains the meaning of copyright in the following terms:

"14. Meaning of copyright.-For the purposes of this Act, 'copyright' means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely-

A. in the case of a literary, dramatic or musical work, not being a computer programme,-

(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(ii) To issue copies of the work to the public not being copies already in circulation;

(iii) To perform the work in public, or communicate it to the public;

(iv) To make any cinematograph film or sound recording in respect of the work;

(v) To make any translation of the work;

(vi) To make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);

B. in the case of a computer programme,-

(i) To do any of the acts specified in clause (A);

(ii) to sell or give on hire, or offer for sale or hire, any copy of the computer programmer, regardless of whether such copy has been sold or given on hire on earlier occasions;"

Thus, under Indian copyright law, computer programs are considered to be literary works and accordingly entitled to copyright protection. However, few Indian courts have considered the scope and extent of copyright protection in relation to computer software and for this purpose, it is necessary to consider the jurisprudence evolved by comparable jurisdictions which have fleshed out principles to enlighten the bare text of statutory laws in this regard.

Distinction between form and idea

Under both the Indian and American systems of law, the protection available to a copyright-protected work is protection in respect of the form and substance of the work and not the idea behind the work. Therefore, applying this principle in the context of computer software, the owner of the copyright over an item of software has the right to prevent any other person from physically copying the code, as it is written, but does not have the right to prevent the utilization of the idea behind the code, provided the person utilizing this idea does so in a manner that is different from his arrangement of the code. Thus, it is necessary to note that unlike the case of a patent over a mechanical product, the copyright over an item of software code does not entitle the author to prevent another software developer from producing the same type of software in a different form and structure.

However, at the same time, it needs to be stated that the point where the idea translates itself into the expression of an idea is an issue that has been the subject of judicial scrutiny by courts in USA. The following principle was laid down in Apple Computer Inc. v. Franklin Computer Corpn.:

"Just as a patent affords protection only to the means of reducing an inventive idea into practice, so the copyright law protects the means of expressing an idea; and it is as near the whole truth as generalisation can usually reach that, if the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result, and no infringement will exist."

Interpreting this principle, it has been concluded that the basis for the determination of the copyrightability of a software program was affirmed as being the intellectual property right, inherent in the form and substance of the instructions to the computer and not to the idea behind their arrangement. This would imply that creative copying of the instructions so as to result in the same program being developed through the use of different lines of code would be deemed to be not a violation of the copyright in the program, as the copyright vests in the instructions themselves and not the end product.

Non-literal copying

The next issue that needs to be considered in this context is as to exactly what type of software reproduction is hit by the offence of infringement of copyright, particularly in cases where the alleged infringer had not copied the code line by line, but had taken something less specific. In this regard, various tests have been developed by courts in USA, in order to arrive at a conclusion as to the type of software and the extent to which it could receive protection. One such test has been to discern whether the look and feel of the two programs was the same. If the answer to that question was in the affirmative and if it could be shown that the defendant had access to the plaintiff's program, copyright infringement was likely to have occurred.

The Whelan test

The question whether there could be copyright infringement in copying the "overall structure" of a program, even if neither the object code nor the source code of the program had been copied came to be examined by the US Court of Appeal, for the Third Circuit in Whelan Associates Inc. v. Jaslow Dental Laboratory, Inc. In this case, the alleged infringer rewrote a program that was originally coded in a particular computer language in a different programming language. While evolving the look and feel test the court concluded (on the basis of prior decisions that had held that there could be infringement of copyright in a play or book by copying the plot or plot devices of the play or book when the total "concept and feel" of the alleged infringing work was substantially similar to that of the copyrighted work) that the said test should apply to infringement of copyright in computer programs.

The court also concluded that the detailed structure of a program was part of the expression of an idea than the idea itself, and therefore, the copying of the expression of the idea in the program would amount to an infringement of copyright. The principles laid down by the court in Whelan case can be summarised as hereunder:

Copyright programs are classified as literary works for the purposes of copyright. The copyrights of other literary works can be infringed even when there is no substantial similarity between the work's literal elements. One can violate the copyright of a play or a book by copying its plot or plot devices. Copyright "cannot be limited literally to the text, else a plagiarist would escape by making immaterial variations". Among the more significant costs in computer programming are those attributable to developing the structure and logic of the program. Allowing copyright protection beyond the literal computer code would provide the proper incentive for programmers by protecting their most valuable efforts, while not giving them a stranglehold over the development of new computer devices that accomplish the same end. It is not true that "approximation" of a program short of perfect reproduction is valueless. On the contrary, one can approximate a program and thereby gain a significant advantage over competitors even though additional work is needed to complete the program. The issue in a copyrighted case is simply whether the copyright-holder's expression has been copied, not how difficult it was to do the copying. Whether an alleged infringer spent significant time and effort to copy an original work is therefore irrelevant for decision as to whether he has pirated the expression of an original work. The conclusion is inescapable that the detailed structure of a program is part of the expression, not the idea of that program. Copyright protection of computer programs may extend beyond the program's literal code to their structure, sequence and organization.

Copyrightability of material in the public domain

The court has specifically dealt with copyrightability of computer software based on material found in the public domain. Such material is free for the taking and cannot be appropriated by a single author even though it is included in a copyrighted work. Quoting this general rule of copyright, the court stated that it found no reason to make an exception to this rule for elements of a computer program that have entered the public domain. Thus, a court must also filter out material available in the public domain before it makes the final inquiry in its substantial similarity analysis.

The Early Days

Early in the development of the art of software writing, the originators thereof feared that traditional forms of protection such as patents and copyrights would not give them sufficient protection and relied upon trade secret law. It soon became clear, however, that this was not the best solution to the problem since to establish trade secret protection, one must take some steps to impose a confidential relationship on those who have access to the secret. In a free flowing industry such as the computer software business, this is difficult.

Attention has, therefore, returned to the traditional protection of patents and copyrights. As discussed in above many computer-related inventions are patentable. However, patent protection cannot be obtained for inventions in this field that do not meet the current test for patentable subject matter. Furthermore, to be patentable the program must be "not obvious". This can be a difficult requirement to fulfill. Furthermore, patent protection requires a fairly prolonged examination by the Patent Office before any rights arise and is thus not the ideal way of dealing with copyists who may be extremely quick off the mark.

When a computer program is written out on a piece of paper, it is quite clear that copyright exists in this work in the same way as it would in respect of any other literary work. The first problem with which the courts had to grapple was whether copyright law could be extended to cover computer programs which exist merely in magnetic or electric form or as specific circuits etched on to a silicon chip.

The United States Copyright Office has provided for the registration of computer programs since 1964. However, that practice was on the basis it was the duty of the Copyright Office to give applicants the benefit of a doubt as to whether computer programs were protectable by law. Indeed, prior to the Copyright Act of 1976, court decisions and the opinions of the leading writers in the field were widely split on the question of whether computer programs were entitled to copyright protection and, if so, to what extent protection was to be given.

The 1976 Act itself was not very helpful in resolving these doubts, although as noted above, Section 102 states that copyright protection exists in works that are fixed in any present or future tangible medium even if it can be reproduced only by means of a machine or other device. On the other hand, Section 117 of the 1976 Act as originally enacted specifically stated that it was not the intention of the Act to change the preexisting law in respect to protection of computer programs. The Act, however, did not indicate what the preexisting law was. This problem was finally resolved in 1980 by the passage of the Computer Software Copyright Act 1980 which repealed original Section 117. This repeal removed any doubt as to whether the broad definition of Section 102 extends to software. Furthermore, a new Section 117 was enacted which provided that the owner of a computer program had a limited right to copy or adopt that program if this was necessary to ensure that the program could be used in a particular computer. Indeed, the new Act even provided a definition of a computer program as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result".

The first generation of cases to come before the courts mostly involved actions for copyright infringement in ROM's (Read Only Memory). Three main lines of argument were used by defendants to try to resist actions brought by the originators of a computer program which have been incorporated into the defendants ROMs. The first was that ROMs are utilitarian (the sub-argument of this being that even if not all such ROM's are utilitarian, at least those whose function is to work the computer itself are). The second was that since the program as it appears on a ROM is in object code form and therefore not intelligible to human beings, it falls outside the definition of "copy" in the Copyright Act. The final line of argument used was that it is against public policy to give computer manufacturers copyright protection for their software because such protection would hinder competition in the development of new computers.

The courts have not been impressed by arguments that computer software is purely utilitarian when they are presented in the context of direct copying of a particular program. For example, in an early case the Third Circuit Court of Appeals has rejected the argument that the use of a computer program encoded in a ROM was utilitarian and the argument that since the coding was in object code it was not a copy intelligible to humans and, therefore, outside the Copyright Act protection. The latter point was established by analyzing the definition of "copy" in the Copyright Act. Section 101 of the Act defines copies as:

material objects, other than phono records, in which a work is fixed by any method now known or later developed and from which the work can be perceived, reproduced or otherwise communicated either directly or with the aid of a machine or device.

The court held that since Congress had chosen to define "copy" broadly in this manner, it would be perverse to seek to interpret this broad language in a manner which would severely limit the copyrightability of computer programs by restricting this protection to the text and not to duplication of the program on a fixed silicon chip. The court further rejected an argument that ROMs were utilitarian objects and, thus, not subject to copyright protection by observing that ROM's were not the objects which had to meet the test of copyrightability. Only the original program had to be copyrightable. Once copyright existed in that program, the only question remaining was whether a ROM constituted a copy of it. As noted above, the court had no difficulty in deciding that this was the case. A similar conclusion was drawn by the District Court in the Northern District of Illinois.

One might have expected defendants to be more effective in utilizing the idea-expression dichotomy running through the United States copyright law when the defendant has done something more than copy the source or object code expression of the copyright owner's program. With a few exceptions, however, the courts have still tended to favor the copyright owner. One case where the argument was successful, however, was in Q-Co Industries, Inc. v. Hoffman. In that case, the court denied a preliminary injunction to prevent the defendants selling a program that was inspired by the program of the copyright owner in a case where the alleged infringer had taken a program designed to run on one type of hardware and had expended substantial effort to produce a program that would fulfill the same function on different hardware. The court noted that although the general structure of the two programs in question are very similar, they were written in different languages and employed wholly distinct algorithms. It concluded that the similarities "can be more closely analogize to the concept of wheels for the car rather than the intricacies of a particular suspension system ... it was the idea that was used rather than its expression. Therefore, copyright infringement has not been established".

As can be seen from the cases discussed above where consideration of the meaning of "copy" was of importance in determining whether there was copyright protection for a given product, in copyright law unlike patent law the issues of what constitutes protectable subject matter and what constitutes infringement are often intertwined. Furthermore one should bear in mind the fact that unlike the situation with patents, there is no Court of Appeals with nationwide jurisdiction for copyright cases and so different views may be taken in different circuits.

Once the basic issue of whether copyright protection could exist at all for computer software had been resolved the next issue, which is still with us, was to determine what exactly might be covered by copyright, particularly if the alleged infringer had not copied code line by line but had taken something less specific. The first group of cases to tackle this issue considered whether the "look and feel" of the two programs is the same and if so and if the defendant had access to the plaintiffs program, then copyright infringement was likely to be held to have occurred . Thus, if there was substantial copying of details of a program designed to fulfill a particular function on one type of hardware in producing software to fulfill the same function on different hardware, the mere fact that substantial effort was involved in making the conversion or even that different programming languages were used might not avoid a finding of copyright infringement. This is particularly the case if what is shown on the screen at each stage of running both the copyrighted and the allegedly infringing program or if similar errors appear in both programs.

The "Look and Feel" Test

In Whelan Associates the Third Circuit Court of Appeals was confronted with the question of whether, even if there was no copying of object code or source code, there could be copyright infringement in copying the "overall structure" of a program. The case was one where the alleged infringement was a rewrite of a program written in one computer language in a different language. The court concluded that since computer software was classified as a literary work under the Copyright Act and since prior decisions had held that there could be infringement of copyright in a play or book by copying the plot or plot devices of the play or book when the total "concept and feel" of the alleged infringing work was substantially similar to that of the copyrighted work, the same test should apply to infringement of copyright in computer programs. The defendants had argued that this conclusion was inappropriate in cases of computer software because of the basic premise in copyright law that copyright should apply only to the expression of an idea and not the idea itself. According to the defendants, the structure of a computer program is by definition an idea rather than an expression. The court, however, dismissed this argument by pointing out that it was possible to write a totally different program to perform the same tasks as both programs performed in the present case. The court thus concluded that the detailed structure of a program was part of the expression of an idea rather than an idea itself and upheld a finding of copyright infringement.

Similar reasoning was subsequently used to uphold the copyrightability of menu screens as shown on monitors when a computer was running a particular program as audio visual works.

Copyright infringement was also found in the unauthorized writing of a computer program to implement a scheme embodied in a copyrighted literary work that had previously been operated manually.

A further development has occurred in consideration of whether copyright protection exists for what is known as "microcode", i.e., the programs embodied in a semiconductor chip for operating a computer. These had been arguments that in view of the utilitarian nature of such "operations" software it should be treated differently from the prior cases that had dealt with "application software". However, in the first case of this type to come before the courts, copyright protection was upheld. The judge commented "the methodology employed in the creation of a microcode is to the court indistinguishable from that employed in the creation of any computer program".

Early in the 1990's, however, the pendulum began to swing as software writers started to complain that the protection being given by the courts was overly broad and as such was inhibiting new developments. Concern that the "look and feel" test was leading to overly broad protection led at first to adoption of a two part test assessing intrinsic and extrinsic similarities. In Johnson Controls the court focused on the question of whether the structure, sequence and organization of the alleged infringement was the same as that of the plaintiffs program and in Lotus Dev Corp v. Paperback Software a different court looked at the flow charts of the parties to determine whether there was infringement.

In 1992 the idea began to take hold that a computer program was in some ways like a play or other literary work in which a variety of possibilities presented themselves for protection from, at the most specific the actual script to, at the most general, the broad outlines of the plot. Other traditional copyright doctrines such as the concepts that in some cases there could be a merger between the idea and its expression because of the limited ways in which a particular idea could be expressed or that protection would not be afforded to features that were dictated by external requirements also started to be applied in the computer software field. The advantage of these approaches was that copyright lawyers had already grappled with these issues over many years and if the principles that had evolved in dealing with plays could be applied to computer programs, thus should facilitate rapid development of the law.

One of the earliest case to use such an approach was Autoskill Inc v. National Educational Support Systems Inc. In this case Judge Mechem specifically declined to follow the look and feel cases and stated:

A better approach for determining what is idea as opposed to expression is known as the abstractions test articulated by Judge Learned Hand in Nicholls v. Universal Pictures Corporation (17 USPQ 84 2nd Cir 1930)... [u]pon any work, and especially a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may be no more than the most general statement of what the play is about, and at times may consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ideas to which, apart from his expression, his property never extended.

Fair Use

Like the copyright laws of almost all countries, the U.S. Copyright Law provides for exceptions that permit certain acts which would otherwise be actionable as copyright infringements. These provisions, known as the "fair use" provisions apply to all copyright works and provide exceptions from copyright protection for "purposes such as criticism, comment, news, reporting, teaching (including multiple copies for classroom use) scholarship or research". In deciding whether a use is fair, courts must consider:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) The nature of copyrighted work;

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) The effect of the use upon the potential market for or value of the copyrighted work.

On October 25, 1992 the Fair Use Provision was amended to make it clear that "The fact a work is not published shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Certain additional specific provisions are made for fair use in various fields. For example, it is not a copyright infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such new a copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) That such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

The first two cases in which the application of the Fair Use Provisions to computer software were considered by appellate courts both related to the programs used in game consoles where competitors had carried out reverse engineering to try to determine what programming needed to be included in a game cartridge to enable it to be used in the game console in question. In the case of Sega Enterprises v. Accolade Inc. the court carried out an analysis of the above listed factors emphasizing in particular the question of the effect of the competitors on the value of the copyrighted work (a factor on which the Supreme court had focused in the case of Harper & Row v. Nation and noted that the purpose of the copyright statute was to promote the useful arts rather than necessarily to give an inviolable monopoly to the original producer of a copyright work. In the present case the court felt that permitting a wider range of games to be played on the consoles in question was unlikely to reduce sales of such consoles and thus held that such reverse engineering so as to make a separate program operable with the console in question was a fair use. A similar conclusion was reached by the Federal Circuit court of Appeals in Atari Games Corp. v. Nintendo.

Conclusion

Under traditional principles of intellectual property protection, copyright law has served as the principal source of legal protection for literary and artistic work, while the patent system and trade secret law have been the primary means for protecting utilitarian works. Computer software as a relatively new recipient of copyright protection, however, defies easy categorisation within the traditional framework of the intellectual property system.

With respect to computer software, courts have had to grapple with the vexatious issue of drawing a precise line between copyrightable expression of computer software and the uncopyrightable processes that they implement.