An anonymous online survey of nearly 4,000 software developers, carried out by Out-law.com, has found that borrowing and exchanging software code is considered acceptable practice among developers. Moreover, many freelance developers stated that copying, re-using or even reverse engineering code, although in some ways unlawful, is common in software development.

The survey found that over 75% of software developers will re-use code that was written elsewhere. Developers often carry a library of code with them from employer to employer, and use such code without the lawful owner's knowledge or permission. Software code is subject to copyright protection in most jurisdictions, and in order to decide whether infringement has occurred, it must be determined whether its inclusion constitutes a substantial part of a particular program.

The survey also revealed that many developers do not realize that software does not need to be identical for copyright infringement to occur - by replicating the original code, a developer could still be found to have copied a substantial part. For the substantiality test, a court will normally consider the degree of skill and labour that has gone into the copyrighted work. In one case, although a party copied less than 3% of the code, it was still found to have infringed copyright.

The growing practice of code borrowing, coupled with the high attrition rate, means that software companies constantly face the threat of developers introducing material from previous employers, clients or elsewhere into the company's own code. Employers now have to be extra vigilant to ensure they are not infringing third-party intellectual property. The Internet further complicates matters due to the easy availability of software codes, and the potential for code sharing through online forums. Developers often like to show off their work with pride, and are not necessarily as concerned about protecting it as they should be.

Prerak Hora and Vivek Kathpalia, Nishith Desai Associates - Legal & Tax Counselling Worldwide, Mumbai