Author: Shreya Kunwar
Graphical User Interface (hereinafter referred to as “GUI”) is a visual interface that allows interaction with all kinds of electronic devices through graphical elements like icons and menus. The classification of designs under the Designs Act, 2000 (“Act”) does seem to recognize the protection of GUIs but the framework lacks clarity, and its application has been to the contrary. Currently, GUIs are extended some protection under the Copyright Act, 1957. Outside India, GUIs are mostly protected under Design Laws. For instance, in the European Union protection to GUIs is accorded under Designs law by virtue of the Community Design Regulation (Council Regulation No. 6/2002/EC).  The absence of unambiguous statutory provisions and clear, consistent precedents makes the topic worthy of judicial scrutiny.
According to Section 2(a) of the Act, ‘article means any article of manufacture… includes any part of an article capable of being made and sold separately.’
Section 2(d) of the Act states that ‘design means only the features of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms by any industrial process or means… which in the finished article appeal to and are judged solely by the eye.’
From a plain interpretation of the above, it is evident that an app or a software can be treated as an article only if the word ‘manufacture’ includes programming and the writing of the software code. Assuming such an expansive interpretation of the word ‘manufacture’, for the GUI part of the software to be also considered an article, the GUI should be capable of being made and sold separately. In theory, even if rarely in practice, the GUI code can be written separately from the writing of the code of the subsuming software. Even with this further assumption, for GUI to be an article it would need to be capable of being sold separately as well. GUI, however, is never sold separately from the software subsuming it. It would be dubious to assert that it is capable of being sold separately. Only for the purpose of argument if it is assumed otherwise, and GUI is treated as an article, does it feature a design applied to it by an industrial process? Or could it be that GUI itself is a design applied by an industrial process to the subsuming software?
Answering these two questions turns on an interpretation of the word ‘industrial’. If the word ‘industrial’ is accorded an expansive interpretation on the same lines as the expansive interpretation of the word ‘manufacture’ (supra) to include the activity of software code writing and programming, GUI can be associated with the concept of a design in the statutory sense. It will still remain unclear, though, whether GUI itself is the design or whether it is the article embodying the design.
Copyright Protection instead of Design Protection?
In 2014, on an application filed by Amazon Technologies Inc. [Design Application No. 240305 (2014)]  for registration of its GUI for ‘providing supplemental information of a digital work to a display screen’, the Designs Office denied protection. The reasoning given by the Controller of Designs was that a GUI does not meet the requisites under Sections 2(a) and 2(d) of the Designs Act and hence cannot be registered.
Under the Copyright regime, the issue first arose in relation to copyright protection over computer programs in 2016 in the case of Maraekat Infotech Ltd. v. Naylesh V. Kothari [2016 SCC Bom 2369]  before a single judge [Gupte S.C., J] of the High Court of Bombay. The Plaintiff in this case had approached the Court alleging infringement of copyright in its software. The Plaintiff contended that the Defendants were the former employees of the Plaintiff and alleged that they had copied the software developed by the Plaintiff. The Court held that in cases of copyright infringement in computer programs and software, besides comparing the literal similarity between the two software, the overall similarity in features of design and program structure also need to be thoroughly examined. The Court in this case extended the copyright protection available to computer programs and software to their ‘structure, sequence, and organization’. The meaning of the phrase ‘structure, sequence and organization’ can perhaps be understood to cover GUI as well.
GUIs therefore are currently afforded some protection under the Copyright Act under ‘computer programs and software’ but denied protection under the implementation of the Designs Act.
It would be useful to discover the Government’s thinking on this dichotomy.
MeitY’s position on GUI under Copyright Act, 1957
Grant of protection to GUIs under the Copyright Act also seems to have the backing from Ministry of Electronics and Information Technology (“MeitY”)-
“GUI is an element of the program through which users can interact with various other features of the computer programme. Copyright protects form of expression and can be used to protect source code and the object code of a computer programme. Furthermore, computer programmes are protected as a literary works by the Indian Copyright Act and hence, the look and feel of Graphical User Interface (GUI) can be protected under the Copyrights.” .
The development of novel technology and enhancement of existing ones requires evolution of the legal regime. A strict literal interpretation of the existing provisions of the Indian Designs Act renders it near impossible to confer protection to GUIs under the Designs Act. Consequently, the Courts have been bound by the restrictive approach taken by the legislature. Evolving times and international harmonisation arguably require an amendment in the Designs Act, 2000, to widen the definition of ‘article’ and/or ‘design’ to bring GUI under the ambit of design protection.
2. Design Application No. 240305 (2014). https://ipindiaservices.gov.in/DesignApplicationStatus
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