CLEAN ROOM PROCEDURE IN COMPUTER SOFTWARE

DEVELOPMENT: AVOIDING COPYRIGHT INFRINGEMENT

-Priyanga .GAltacit Global

Computer Software is protected under 3 different IP heads:

TRADE SECRETS

PATENTS

COPYRIGHTS

INTELLECTUAL PROPERTY

Indian Copyright Act, 1957

• Sec 2 (o)- “LITERARYWORK”

Literary works includes “computer programmes, tables and

compilations including computer literary data bases”.

• Sec 2(ffc)-“COMPUTER PROGRAM”

Computer program is a “set of instructions expressed inwords, codes, schemes or in any other form, including amachine readable medium, capable of causing a computer toperform a particular task or achieve a particular results”.

Copyrightable Subject matters

◦ Original works of Authorship

◦ Fixation in a Tangible Form

Works not protected under copyright:

◦ Facts

◦ Work created by Government .

◦ Works not fixed in a tangible form

◦ Ideas, concepts or principles

◦ Works in the public domain

What are the rights granted to the owner of computer software?

Reproduction Performance Translate Adapt Issue copies Sell Give on commercial rental

Copyright infringement exists if you exercise oneor more of the above said exclusive rights held bya copyright owner without the lawful ownerspermission.

What amounts to infringement of Computer Software?

• Unauthorized copying of computer software. Like.,

Softlifting, Counterfeiting of software, Internet piracy

etc.

• Any person not being a licensed user, does any act

related to the exclusive rights of the owner of the

copyright without his permission.

• It is not necessary that the entire original work be

copied for an infringement of the reproduction right

to occur. All that is necessary is that the copying be

"substantial and material."

Permitted copying of Computer Software:

If you are the owner, or a licensed user of a piece of

software, you may make a copy of it for the purposes

mentioned below:

1. Normal use or study

2. Security testing

3. Error correction

4. Interoperability

5. Normal backup copying

6. To use a copy and store the original

What is clean room?

It is a type of software development approach wheremost of the software developers follow this approachto develop software with certifiable reliability. Thisclean room is to deny the entry of defects during thedevelopment of software. The approach aims at highprobability of zero defects.

A new product is developed by reverse engineeringan existing product, and then the new product isdesigned in such a way that copyright infringementis avoided.

It avoids copyright infringement litigation.

• In ABKCO Music v. Harrisongs Music, {FN105:

722 F.2d 988, 221 USPQ 490 (2d Cir. 1983)}

George Harrison was found to have infringed the

copyright of “He’s So Fine,’” a song that he had

heard years before, when he wrote “My Sweet

Lord.”

• Defeats the “proof of access” element.• Clean room procedure is a way to avoid

infringement when writing a program similarto another program.

The Plaintiff,

• Need not prove the actual copying.• It is enough to prove that the accused party

had access to the code.• The accused party’s code is substantially

similar to the claimant code

Basic requirements:1. No contact between “Clean room designers” and “Dirty

room Designers”.

2. Location of clean room shall be at distance from possible social contacts.

3. A credible person shall act as a monitor for all information’s passed into the clean room to assure that public information is alone introduced. An Independent person shall be appointed for this purpose.

4. Any information of the original software such as module designations, names of variables, file layouts etc., shall not be allowed into the room as it would influence the structure of new software.

5. Keep records of information's that goes in and out of the clean room.

6. All communication between clean room occupants and anybody else shall pass through the monitor, as there is always the suspicion that other information's may be passed.

7. Complete records of day-day activity shall be dated and attributed.

8. The program shall not be evaluated before the activity ends.

CASE STUDY:

Nordstrom Consulting, Inc. v. M&S Technologies, Inc.

(N.D. Ill. 2008).

THANK YOU