Protection of Software Under Copyright vs Patent: Analyzing the Doctrinal Uncertainty in Indian IP Regime

ABSTRACT
The growing importance of the digital economy has further fueled the debate about the proper scope of intellectual property protection for computer software in India. This paper discusses the doctrinal ambiguity arising from the coexistence and distinctness of copyright and patent laws under the Copyright Act of 1957 and the Patents Act of 1970. Although software is specifically protected as a literary work under copyright law, patent protection is still a matter of debate under Section 3(k) of the Patents Act, which provides that “computer programs per se” are not patentable. By carrying out a doctrinal analysis of the relevant statutory provisions, judicial decisions, and Patent Office guidelines, this study assesses the manner in which Indian courts and authorities have been interpreting the “technical effect” and “technical contribution” threshold in computer software inventions. This paper finds that the current regime is a manifestation of conceptual tension between innovation policy and statutory exclusion, which requires legislative clarification or judicial consistency to ensure certainty and alignment with international technological advancements.