A Graphical User Interface (GUI) is a software that enables the user to communicate with computers and other electronic devices by direct manipulation of a visual screen using menus, buttons, symbols and pointing devices. The most of the modern devices have even ditched the pointing device and instead use touchscreen panels to access the GUI. In the current age of smartphones and ‘internet of things’ where they are used to control a huge number of ‘smart devices’, a ‘well-designed’, ‘visually pleasing’, ‘easy to use’ and ‘easy to interpret’ GUI makes it easy for even an untrained/unskilled user to complete tasks on the devices with high efficiency both in output and time. Such ability of a good GUI not only adds a value to a well-coded computer program/software but also to the overall output of the industry that uses it and hence its protection becomes essential. In a broad sense, the Intellectual Property (IP) in a GUI can be interpreted in two ways, i.e., Copyright and Design.
COPYRIGHT PROTECTION FOR A GUI
The Copyright Act, 1957 provides protection to original Literary, Dramatic, Musical and Artistic (LDMA) works. A GUI corresponds to the ‘look and feel’ of a computer program and hence forms the part of ‘non-literal element of the program’, while under the LDMA regime of Indian Copyright Act, only the source code can be protected.
According to a FAQ posted on websitei of Ministry of Electronics & Information Technology, GUI is a subject matter to the Copyright Act but the absence of any provision in the Act relating to GUI contradicts it. To further confuse the protection under the act, section 15 of the act states that that copyright shall cease to exist in a work eligible for design protection if the article to which the design is applied is reproduced more than fifty times by an industrial process.
With Copyright Act being devoid of any provision regarding GUI, and section 15 pointing towards the Design Act, 2000, it is pertinent to move the discussion ahead to the Design Act, 2000.
DESIGNS PROTECTION FOR A GUI
In the nations with developed Information Technology (IT) sector like US, Japan, South Korea, and EU, the GUIs are usually registered under the Design regime since the main function of the GUI is to provide the user with visual look and feel.
In India, prior to the Designs (Amendment) Rules, 2008, some GUI registrations were granted under the ‘Miscellaneous’ Class 14-99 of the Design Rules 2001. After the 2008 amendment, to incorporate GUIs under the Indian Design regime, ‘Class 14-04: Screen Displays and Icons’ was added to the 3rd schedule of the rules in order to comply with ‘Locarno Classification’ii.
The amendment since then, has proved nothing but a lost cause. Even after the said amendment, when Amazon applied for the registration of a GUI vide Application No. 240305 (dated 19.10.2011), the Indian Design Office denied the registration and stated that GUIs did not fit within the meaning of ‘Article’ [section 2(a)iii] and ‘Design’ [section 2(d)iv] as under the Design Act, 2000.v The office further stated that:
A GUI lacks ‘constant eye appeal’ as it is visible only when the computer screen is on and hence is merely a function of a computer screen and not an IP.
It failed to qualify as a finished article since no industrial process was employed to manufacture it.
The GUI as not the integral part of the article but purely functional.
Since the GUI cannot be sold separately, it is not physically accessible.
One possible criticism to the Design Office’s approach can be made out from the accepted authority in designs in Dover Ltd. v. Nurnberger Celluloid Waren Fabrik Gebruder Wolff. In his judgement, Buckley L.J stated that a design is not an article but is a conception, suggestion or idea of a shape or of a picture or of a device or of some arrangement which can be applied to an article by some manual, mechanical or chemical means and is the thing capable of being registered.
The essence of this judgement is that contrary to what the Office decided, a design may not be an article, and yet it is capable of being registered. Also, the design may not be an article as per s. 2(a) but it is very much part of an article- the screen on which it is displayed. Thirdly, it is not merely a functional aspect of the screen but amalgamates intricately coded software with graphic design giving it a distinct ‘look and feel’. Fourthly, the IT sector is filled with software designers who specialise in GUI designing and GUI kits generally called as ‘UX/UI kits’ are available in the online marketplaces that are sold independently of the platform they are needed to be applied on. The decision of Office clearly lacked the farsightedness and affected future registrations.
DESIGNS: THE WAY AHEAD
The erred decision in Amazon has been a setback to the industry and since this, the office has been more than reluctant in granting design registration to GUIs. On a simple public search for ‘Graphic User Interface’, a list of some 17 registered GUI designs appear that too are registered after the applicants claimed ‘priority’ owing to an international registration.
In January, 2021 Design (Amendment) Rules, 2021 were published and Rule 10 was amended to include classification of articles as per current edition of “International Classification for Industrial Designs (Locarno Classification) in the sub-rule (1). This might come as relief to the GUI professionals as Class 32 added to the Locarno Classification specifically protects GUI. The only challenge that has crept into this hope is the added proviso to Rule 10 that such a classification has to conform to s. 2(a) and 2(d) of the Design Act, 2000. This again leaves the scope of an amendment since the strict interpretation of the proviso might leave GUIs out from the protection of Design despite Class 32.
The Designs Act, 2000 certainly has many advantages over Copyright Act, 1957 when it comes to protection of GUI. The protection term that Design provides (10 years) is very much compatible with the pace of technological development in the field than the one provided under Copyright Act, 1957 (60 years after the death of author). Further the protection also does not suffer with exceptions of fair dealing. Moreover, s. 15 of Copyright Act, 1957 threatens the GUI protection since the mass production may lead to forfeiture of Copyright. But as discussed above, India lacks in robust protection of GUI with confusing law and contradictory decisions made by the authorities. And to market itself as a technology hub, a clear-cut regime for GUI protection has to be carved out from the existing laws and simultaneously adjusting it according to the evolving Locarno Classifications.