S.C Gupte, J.:— This is a Suit complaining of infringement of copyright in a software. Some of the Defendants are said to be former employees of the Plaintiff. It is the Plaintiff's case that they have copied the software of the Plaintiff, which is known as ‘EON-Exchange on Net’, which is a browser based software. It is the case of the Plaintiff that the copied software is marketed by the Defendants under the nomenclature ‘iExchangeForex’. With a view to find out whether the Defendants' software is an infringing copy of the Plaintiff's software, this Court appointed Tata Consultancy Services (“TCS”) as an expert Court Commissioner to compare the two softwares and find out if and to what extent there was a similarity between the two softwares. TCS has given a Report, which is produced by the Defendants in their Affidavit in Reply of the Notice of Motion. This Report indicates that based on a comparison made by TCS between the two application/service codes, namely, “EON-Exchange on Net” and “iExchangeForex”, findings were recorded by TCS in paragraph 6 of their Report as follows:-
“a. The programming structure and the number of files are different between the Plaintiff and the Defendant.
b. We had used Visual Studio Professional Code Cloning Analysis tool to compare the entire set of code files associated with the application/service of the Plaintiff with the entire set of code files associated with the application/service of the Defendant.
c. The tool could not find any code matches between the two, in any of the four categories it analyses: Exact match, Strong match, Medium match and Weak match.
d. Further details of the comparison are in the Annexure - I.”
2. When the Notice of Motion came up for final hearing and the matter was argued at some length before this Court, it transpired that there could be some elements, which were not examined by TCS from the point of view of comparison of two softwares in the context of infringement of copyright. It is submitted by learned Counsel for the Plaintiff that what TCS has carried out is only a syntactical analysis, which brings about literal similarities between the two softwares. It is submitted that their particular comparison made by TCS and the particular tool used by TCS to carry out its analysis yield only literal similarities only between the two softwares and do not indicate similarities insofar as the “program structure” and “design features” of the two softwares are concerned. On these aspects, the rival parties have differing versions. It would be unsafe for this Court to opine, whether or not the analysis was merely syntactical as suggested by the Plaintiff or did it also consist of program structure or design features of the two softwares as suggested by the Defendants. The Courts have, no doubt, in the matter of infringement of copyright in software considered not merely literal similarity, but also similarity in programme structure and design features. The copyright protection of computer programs is said to extend beyond the programs' literal code and to their “structure, sequence and organization”. The question, however, is whether or not the TCS report consists of analysis of these features. That is something which TCS alone is better equipped to answer. Besides if these similarities between the programme structure and design features is not checked by TCS, they may still do so in order that this Court is in a position to make up its mind on the issue of infringement. Accordingly, I propose to refer the two softwares again to TCS, particularly, with a view to opine about the analysis of these features including ‘structure, sequence and organization’ of the programs.
3. However, when I indicated this proposal, learned Counsel for the plaintiff pointed out that there was another software of the Defendants, which was termed as ‘iEnterprise’, which was said to be a mother software so far as the software of ‘iExchange’ is concerned. It is submitted that the software of iExchange is not complete without the mother software of iEnterprise. Again whether this is in fact so is a matter of dispute between the parties. Since, however, this second software of iEnterprise and its connection with the original software, namely, iExchange, is a matter of pleading, since there is no pleading in this behalf, I am not in a position to consider the Plaintiff's request to include the software of iEnterprise in the comparative analysis of rival softwares to be either done further, or opined on, by TCS. After I indicated so, learned Counsel for the Plaintiff offered to move an amendment application by way of chamber summons to amend this pleadings, with a view to include the plea of copyright infringement also about iEnterprise and particularly, in the light of its connection to the software of iExchange.
4. The Plaintiff may do so by taking out an appropriate application for amendment. Needless to add, the rights and contentions of both parties in respect of the proposed amendment are a matter to be decided in the amendment application as and when moved by the Plaintiff and will not in any way be prejudiced by whatever is observed by me in the present order.
5. Since the Plaint is now sought to be amended, with a view to include averments in respect of the software of iEnterprise and it may well be that comparison of rival softwares of the parties will have to include the software of iEnterprise, though I express no opinion on the same just now, I am not inclined to call for further explanation or comments of TCS as of now, as indicated by me above. The question of further comparison may better be considered after the amendment proposed by the Plaintiff is considered, in the first place.
6. The Motion is, accordingly, stood over to 15th March 2016.