Copyright Protection for Computer Software in India

Introduction

Copyright was usually associated with artistic products, but today in addition to all this copyright is now an important tool in protecting computer software. The Copyright Act provides copyright protection for original works of authorship fixed in any concrete medium of expression. The Act gives the copyright owner exclusive rights over the reproduction, preparation of derivative works, distribution. It is not a necessity to take steps after the work has been created and "fixed in tangible form" for copyright to exist. But a registration of copyright in a work is necessary to proceed with an action for infringement of it.

Indian Law

In India, computer software does not form the subject matter of patents as it does not fulfill the requirements for a patentable product. India has adopted most of the international instruments like TRIPS, Berne Convention, WIPO Copyright treaty etc and has also incorporated law on software protection. The major statutes that cover software protection in India are the Copyrights Act, 1957 (“Act”) and Patents Act, 1970.

Copyrights Act, 1957

The Copyright Act of 1957 is the law governing copyrights in India. The Act was amended in 1999 so as to make the Act compatible with the provisions of TRIPS. The Act defines computer and computer programs. “Computer Program” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result[1]. “Literary work” is defined as that which includes computer programs, tables and compilations including computer databases[2]. Copyright, in relation to a computer program means the exclusive right to do or authorize to do any of the following acts[3] :

(1)    To reproduce the work in any material form including the storing of it in any medium by electronic means;

(2)    To issue copies of the work to the public not being copies already in circulation;

(3)    To perform the work in public, or communicate it to the public;

(4)    To make any cinematographic film or sound recording in respect of the work;

(5)    To make any translation of the work;

(6)    To make any adaptation of the work;

(7)    To do, in relation to a translation or an adaptation of the work any of the acts specified in relation to the work in the above;

(8)    To sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer program. Commercial renting does not apply to computer programs where the program itself is not the essential object of the rental.

To do any of the above acts related to the computer program or to use it, a license is required from its owner. Any person who knowingly makes use of an infringing copy of a computer program is liable to be punished with imprisonment for a term of at least seven days and can be extended to three years and with fine of at least Rs. 50,000[4] .

The term of copyright in published literary work published within the lifetime of the author is 60 years from the beginning of the calendar year following the year in which the author dies. In case of anonymous or pseudonymous works, the duration is 60 years from the calendar year following the year in which the work is first published[5]. Thus, the minimum term of 25 years stipulated in the Berne Convention is not applicable in India.

Protection

The basis of protection as literary work is that the work must not be copied from another work, but must be the original work of the author. Author, with regard to computer software, is the person who causes the work to be created. Copyright subsists in a computer program provided sufficient effort or skill has been spent to give it a new and original character. But, a computer program, which does no more than produce the multiplication tables, or the alphabet, cannot lay claim to copyright protection. It is because the amount of skill needed for such an exercise is too insignificant.

Other than the condition of “originality,” a computer program also has to conform to the requirement of first publication as stated in the Act. The work must be first published in India and if it is published outside India, then the author should be a citizen of India at the time of publication. As regards unpublished work, the author should be a citizen of India or domiciled in India at the date of making of the work. The government of India passed the International Copyright Order, 1958 whereby any work first published in any country which is a member of the Berne Convention or the UCC (Universal Copyright Convention) will be accorded the same treatment as if it was first published in India. The registration of copyright is not compulsory in India but registration offers better protection to the author in cases of infringement of copyright.

Acts not amounting to Infringement

In compliance with the provisions of the TRIPS, the Act[6] has clarified that the following acts do not constitute infringement of copyright in software:

(a)    Making copies or adaptation of a computer program by a lawful possessor of a copy of such computer program from such copy in order to utilize the program for the purpose for which it was supplied or to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilize the computer program for the purpose for which it was supplied.

(b)   Doing any act necessary to obtain information essential for operating inter-operability of an independently created computer program with other programs by a lawful possessor of a computer program provided that such information is not otherwise readily available.

(c)    Observation, study or test of functioning of the computer program in order to determine the ideas and principles which underline any elements of the program while performing such acts necessary for which the computer program was supplied.

(d)   Making copies or adaptation of the computer program from a personally legally obtained copy for non-commercial personal use.

Patents Act, 1970

The Patents Act, 1970 states that a computer program per se other than its technical application to industry or a combination with hardware is not patentable[7] . Thus, software can be registered as a patent only if it is in combination with hardware and not otherwise.

Conclusion

The duplicated and pirated software affects all software users. There is a need for stronger legal protection. The primary protection for computer software in India is found in the Copyrights Act, 1957. There are very few cases pertaining to protection of software in India, most of them with Microsoft Corporation as the aggrieved party. In one of these cases[8] , the Delhi High Court awarded punitive and exemplary damages against the wrongdoer who were involved in piracy activities by hard-disk loading. With the growth of importance of software in every business, more and more companies want protection under the legal regime to eliminate and stop software piracy.

Get a Copyright protection or Copyright Registration Service

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[1]               Section 2(ffc)

[2]               Section 2(o).

[3]               Section 14 (b) of the Act

[4]               Section 63B of the Act

[5]               http://copyright.gov.in/Documents/CopyrightRules1957.pdf

[6]               Sections 52(1)(aa), 52(1)(ab), 52(1)(ac) and 52(1)(ad)

[7]               Section 3 (k) of the Patents Act, 1970.

[8]               Microsoft Corporation vs. Ms. K. Mayuri and Ors. 2007 (35) PTC 415 (Del)