COPYRIGHT What is copyright?

Copyright law is concerned in essence with the negative right of preventing the copying of physical material. It is not concerned with the reproduction of ideas, but with the reproduction of the form in which ideas are expressed. Today, not only is protection given to literary, dramatic, musical and artistic works, but also to sound recordings1, films, broadcasts, cable programs, computer programs and the typographical arrangement of published editions. The difference between a copyright and a patent is while a copyright on the one hand is a limited monopoly having its origin in protection closely analogous to patent rights, protecting the fruits of author's exertions in literary, dramatic, artistic or musical compositions, the protection afforded by the patents law is broader than in the case of copyright. By grant of a patent, the patentee acquires an exclusive right to make, use and vend the thing patented by copyright, while the owner of the copyright acquires the exclusive right of multiplying copies and doing other things analogous to this. The patent law protects the production and use of the creative conception reduced to practical shape in various forms; the copyright law protects publication of the copies in the form of the creative conception in which it has been expressed by the author. The right secured by the copyright is the right to that arrangement of words which the author has selected

A sound recording may be of a literary work spoken or recited, the spoken dialogue of a dramatic work or of a song. There may be copyright subsisting in the subject matter recorded. Since making of a sound recording of a literary, dramatic or musical work constitutes infringement of that work a sound recording made without the license of the owner of the copyright in that work will constitute infringement of that work. A sound recording may be of a literary work spoken or recited, the spoken dialogue of a dramatic work or of a song. There may be copyright subsisting in the subject matter recorded. Since making of a sound recording of a literary, dramatic or musical work constitutes infringement of that work a sound recording made without the license of the owner of the copyright in that work will constitute infringement of that work.


to express his/her ideas. The fundamental purpose of copyright protection, therefore is to promote societal development and thus the improvement of all persons- by encouraging the production and dissemination of creative works. Copyright are exclusive rights subject to the provisions of the Act, to do or authorize the doing of any of the acts laid down in the Act. These rights include: 1. the right to reproduce the work, 2. to issue copies of the work to public, 3. to perform the work in public, 4. to communicate the work to public, 5. to make a cinematograph film or sound recording, 6. to make any translation or adaptation of the work, 7. to sell or give on hire any copy of the computer program or sound recording2., and so on. There is no copyright in ideas, subject-matter, themes, plots or historical or legendary facts, however original or brilliant and is confined to the form, manner and arrangement and expressions of the idea by the author of the copyright work. What copyright protects is not the raw materials from which the work is created but the skill and labor employed by the author in the creation of the work. Any other person can produce substantially the same work using the same raw materials or even ideas without infringement if he/she does it originally without copying from the other work. Suppose, I hold a copyright for

Dealers in musical records may have a record lending library, the subscribers to the scheme paying a subscription and a borrowing fee. The subscribers may use the hired records for home taping. It has been held that such activities of a dealer did not amount to authorizing infringement of copyright. The defendant's had at the request of the plaintiff's displayed warning notices and attached stickers to the records regarding the copyright position; See A. & M. Records v. Audio Magnetics [1979] F.S.R. 1; CBS v. Ames [1981] R.P.C. 407.; CBS U.K. v. Amstrad [1988] R.P.C. 567; Cited from Cornish, W.R., Intellectual Property: Patents, Copyrights, Trademarks and Allied Rights, 3rd edn, Sweet and Maxwell, London, 1996, at 369.


the expression " Jack and Jill went up the hill", a copyright violation will not be committed if the expression "Jack went up the hill along with Jill” is used3. In determining whether there is an infringement, where the subject matter of the work is not original, the question is how far an unfair or undue use has been made of the work. If a person instead of obtaining the subject matter from common sources avails himself/herself of the labor of his/her predecessor, adopts his/her arrangements and quotations, or adopts them with a colorable variation it is an illegitimate use. Another related concept is that of passing-off. Apart from statute, an action will lie for the passing-off of a work as the work of the plaintiff, if its title or appearance is such as to lead the public to believe that they are purchasing, or using, a work of the plaintiff and injury is likely to accrue to the plaintiff; it is not necessary to show an intention to deceive. The thing said to be passed off must however, resemble the thing for which it is passed off. Such an action may be brought by publishers who have acquired the copyright in a work from the author, to restrain a publication of a similar work using the author’s name so as to induce the public to believe it was the same as the original work.4 Infringements of copyright may be divided into primary or direct infringement, which consist of the unauthorized exercise by persons (not being the copyright owners) of rights restricted by the Copyright Acts, and secondary, or indirect infringement, which consist mainly of unauthorized dealings with articles which were made in infringement of copyright, together with various other acts. A basic distinction between
3 4


two is that secondary infringement



defendant to have some degree of knowledge that what is being done
Muralidharan, R., Legal Protection of Computer Software, at 3. Lord Hailsham of St. Marylebone (ed.), Halsbury's Laws of England, Vol. 9, Butterworths, London, 1974, at 513.


is an infringement, whereas in the case of primary infringement any such knowledge is not an ingredient of the cause of action. These are some of the basic preliminaries which need to be covered before an intense discussion on the topic at hand can be commenced.


The date of coming into existence of the work. Does what the defendant done. Does the defendant's act come within the scope of any of the exceptions to the infringement listed in Section 52? 5. 2. Particulars of the act done by the defendant. pre-trial pending work requires a lot of evidential analysis on which to structure the suit. 5 . or the acts proposed to be done likely to constitute infringement when completed. 5. 4. The copyright work is original or otherwise qualifies for subsistence of copyright under the Act. The term of copyright has not expired on the date of filing the suit or on the date of committing the alleged infringement. Does copyright subsists in the work alleged to have been infringed? 3. What remedies the plaintiff is entitled to? Evidence to be adduced The plaintiff will be the one to adduce evidence to establish the following: 1.EVIDENTIARY ASPECTS In a copyright infringement case. The acts done or likely to be done by the defendant would constitute infringement of the copyright work. 3. Some of the important steps to be initiated and clarified are as follows: Issues In a suit for infringement of copyright the following issues arise: 1. or proposes to do constitute infringement of the copyright in the work? 4. Is the plaintiff entitled to file the suit? In other words is he/she the owner of a copyright as defined in Section 54 of the Act? 2. alleged to constitute infringement.

Primary evidence is evidence which the law requires to be give first: and Secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first. the alleged acts done by him/her were not done by him/her or if done by him/her.The defendant's evidence will depend upon how far the plaintiff establishes a case of infringement. they do not constitute infringement of copyright or that it comes within the scope of one or other of the statutory exceptions and that the plaintiff has not suffered or is likely to suffer any damages from the activities of the defendant. In the case of infringement of literary works. When materials in which copyright is claimed are not produced at the hearing then their nature must be proved by other evidence. Direct Evidence In most cases there will be no direct evidence of copying. may constitute some evidence of copying. Copying can only be deduced by inference from all the surrounding circumstances. the defendant's work containing the same errors as in the plaintiff's work. nor does it follow that the evidence which was given in his/her case is only secondary evidence. 5 (1892) 2 QB 113 at 116. He/she may adduce evidence to prove that the alleged copyright work is not original or that it is not entitled to copyright. said in Lucas v. 6 . so that the jury may compare the two. may be the most satisfactory evidence of imitation. but it does not follow that it is the only evidence of it which can be given. similarity in language and idiosyncrasies in style. when a proper explanation is given of the absence of that better evidence. As Lord Esher M.. Williams5: …to produce the original picture and the alleged copy. the term of the copyright has expires.R.

Looking at the picture which the defendant sold. that would be sufficient to raise a prima facie case of actual copying and if the defendant did not call evidence to rebut the prima facie case. Evidence of access to the plaintiff's product and evidence of striking general similarities between the products gives rise to a prima facie case of infringement. what difference is there in principle between a man's handwriting and a picture. but original evidence. the picture which the defendant's sold is a copy of the original picture in respect of which there is a copyright.In other words. Where there is substantial similarity between the plaintiff's copyright work and the defendant's alleged infringing copy. When he/she is asked. he/she answers. and this is another way of proving the fact that. or the converse. I say it is exactly like XXX's picture. in order to support a contention of copying. Because I have seen XXX's picture. Different kinds of evidence may be used to prove the same fact. How do you know that?. which he/she paints? The witness says.] Expert Evidence Expert evidence may be called to point out similarities. Burden of Proof [The burden of proving infringement is on the plaintiff. In establishing the defenses pleaded the burden is on the defendant. then copying is proved. But the defendant could give alternative explanation of the similarities in a convincing manner. The defendant may refute by evidence that notwithstanding the similarity there was no copying but independent creation. coincidences and the like. but the expert must stop short of giving his/her opinion that 7 . This is not secondary evidence.

to decide the question of infringement of copyright. ownership of the copyright by the plaintiff. That is a question for the judge. The question whether the defendant has copied the plaintiff's work depends to a large extent on the judge's own impression and on expert evidence. secondary) infringer should only be liable to an injunction and compelled to return profits made on the infringement. copying by the defendant. and b. OWNERSHIP: 6 In the Introduction. directly or indirectly. but should be determined by the ear as well as by the eye. expert evidence may be necessary.the work under criticism is in fact a copy. though it is an analysis disputed by the majority. supposing it to be an original'. Where the case involves minute scrutiny of alleged similarities and dissimilarities and extensive and lengthy comparison. An indirect (or. The plaintiff must prove that. It differentiates between one who copies an original and one 'who copies a copy. But the commissioner's evidence is no evidence. it is not only proper but essential. A distinction between direct and indirect infringers has been already drawn at the outset6. that the case should be tried with the aid of experts who might be appointed commissioners to investigate and report similarities. Infringement of a musical work is not to be determined by a note for note comparison. at 5. In cases of technical and scientific works. Thus the two elements necessary to the plaintiff's case in an infringement action are: a. the defendant's alleged infringement is taken from the work or subject-matter in which he/she claims copyright. 8 .

9 . musical or artistic work is entitled to the copyright in the work. commissioned artistic works. Marylebone (ed. Where copyright would not have subsisted in a work if one of the joint authors had been the sole author (or if more than one of the joint authors had been the sole joint authors). London.8 Where. 9. works of joint authorship. however. Butterworths. at 548. is the owner of the material on which it is taken. the compiler and not the individuals supplying the information. or the work may have been subsequently altered in accordance with the advice of another. dramatic. the compiler of a directory or work of reference collects written material from a large number of individuals and arranges and publishes the result. Vol. but he/she may by himself/herself take proceedings for infringement. at the time when the photograph is taken. compiles. A mere copyist or a person to whom words are dictated for the purposes of being written down is not an author. is the author of the work. 1974.). the copyright is owned by the other joint author(s). Halsbury's Laws of England. although the idea of the work may have been suggested by another. One joint author cannot lawfully reproduce the work himself/herself or grant licenses to others to reproduce it without the consent of the other joint author(s). 7 As to works by an author under a contract of service or apprenticeship. The author of a photograph is the person who.Subject to certain exceptions7 the author of a literary. The author of the design of a building in which copyright subsists is the architect who makes the plans and supervises the work and not the builder Joint Authors Joint authors are in the position of tenants in common and not of joint tenants. but a translator from one language into another or a reporter of legal decisions or of a speech is an author. composes or draws the work in question. The author is the person who actually writes. etc. 8 Lord Hailsham of St.

COPYING It has been accepted that copying could occur subconsciously where a person reads. 4. 5. forget about it but then reproduces 9 Nimmer. at 13-4. This is clearly true on the issue of originality. With respect to most of the above elements of ownership. Citizenship status of the author such as to permit a claim of copyright. Melville B. Originality in the author. Vol. sees or hears a work. the burden of proof then shifts to the defendant to counter this evidence.. a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff the valid copyright claimant. as well as in establishing the copyrightability of the subject matter and the citizenship status of the author. 3.Ownership by the plaintiff (the copyright owner usually) breaks down into the following constituent parts:9 1. Copyrightability of the subject matter. New York. By reason of the benefit of such presumption. 3. Once the plaintiff has established prima facie his/her ownership. 1985. the only evidence required of the plaintiff to establish prima facie ownership in addition to the registration certificate is evidence of plaintiff's chain of title from the original registrant. Compliance with applicable statutory formalities. Nimmer on Copyright. the copyright registration certificate constitutes prima facie evidence. Satisfaction of the statutory formalities is likewise presumed by reason of the registration certificate. 2. 10 . where the plaintiff obtained an assignment of rights prior to registration. in favor of the plaintiff. (If the plaintiff is not the author). as is the plaintiff's chain of title from the author. Mathew Bender.

but very little of his own work was held to infringe. 1985. W. 11 Nimmer. 3. a song lyric had been parodied in pursuit of Prince Philip. Intellectual Property: Patents. the degree of familiarity with the plaintiff's work. Trademarks and Allied Rights. Likewise. at 361. settle the question whether he/she has infringed. 508 where an author published an edited version of Oscar Wilde's trials an earlier version previously having appeared. 12 In Joy Music v. Melville B.. Sunday Pictorial [1960] 2 Q.R. would book reviews constitute a copyright infringement if we extended this logic?13 10 Per Wilberforce J. 3rd edn. London. he acquired copyright in the whole by virtue of his work in selecting and providing linking passages. 11 . there comes a point beyond which the plaintiff has no claim. Eisinger [1969] 1 Ch. Francis Day v. 13 In Warwick Film v. the objective similarity of the defendant's work. at 364. labor and judgement to secure copyright for his/her effort does not. Copyrights. and that with pointed variation. Bron [1963] Ch. Mathew Bender. London. the inherent probability of coincidence…10 Also.. But a defendant who took from large passages from the transcript. cited from Cornish. 587. proof of copying depends on…a number of composite elements.11 Where the defendant has reworked the plaintiff's material. 1996. which is in turn converted into a ballet. Sweet and Maxwell. 3rd edn. Sweet and Maxwell. the fact that the defendant has himself/herself added enough by way of skill.B. under the present law. thereby neatly adjusting the scope of protection to the author's literary effort. at 13-4. but only one repeated phrase was taken. if a novel is turned into a play.. genuinely believing it to be his/her own. Copyrights.but the causal chain must run in the right direction. the causal connection for indirect copying of the drawing will be established. Intellectual Property: Patents. Nimmer on Copyright. W. rather the issue is whether a substantial part of the plaintiff's work survives in the defendant's so as to appear to be a copy of it. There was held to be no infringement as a way of emphasizing that nothing substantial must remain from the plaintiff's work: Cited from Cornish. If the plaintiff owns a copyright drawing and then turns it into a three dimensional article and this is copied in three dimensional by the defendant. In such cases..R. 12 Thus. Vol. Whatever may have been the position in the past. Trademarks and Allied Rights. 60. New York. a work may be copied by imitating a copy of it. at 614.

since it is rare that the plaintiff has available a witness to the act of copying. Since a plaintiff ordinarily can do no more than offer evidence of access and substantial similarity in proving the act of copying. except where the similarity between the two works is such that no explanation other than copying is reasonably possible. If the defendant in fact copied from a work other than that of the plaintiff's (and such work was not itself copied from the plaintiff's) it is irrelevant in plaintiff's infringement claim that the defendant may have infringed the copyright in such other work. New York. the use that a defendant may make of it for his/her own purposes may not be a substitute for exercising his/her own labor. 3. 1985. Mathew Bender.14 But. such evidence does not require the trier of fact to find copying.although proof of access and substantial similarity are sine qua non to a finding of copying. Vol. at 13-6. but is to be taken as a starting point for his/her own collation of information or as a means of checking his/her own independent research. the Courts have sought to give some measure of protection to the plaintiff's against a trier's uncritical acceptance of the defendant's 14 . skill and judgement. copying may occur without any objective physical manifestation since copying from memory is no less actionable than is copying from direct view.. 12 . Therefore copying is established indirectly by the plaintiff's proof of access and substantial similarity. the trier of fact may uphold a finding of no copying if such trier believed the defendant's evidence of independent creation.Where the plaintiff's work records information. Nimmer on Copyright.Nimmer. Melville B. despite proof of access and substantial similarity. It is generally not possible to establish copying by direct evidence. Apart from the unavailability of witnesses.

In line with theses broad synonyms. Designs and Patents Act. 1988 has introduced three forms of infringement: i. etc. This has been achieved through the imposition on the defendant of a high standard of proof of independent creation where the plaintiff has clearly established access and substantial similarity. Authorizing infringement by others [section (16)(2)] Permitting a place of public entertainment to be used for performance of a work [section 25] Providing apparatus for performing. it has been said that indifference. iii. Permitting performance is expressly stated to be subject to the defense of reasonable belief that there would be no infringement. in the ordinary course. an employer will be vicariously liable for any infringement committed by an employee in the course of his/her employment and for the acts of independent contractors which he/she specifically requested. countenance or approve. may reach a degree from which authorization or permission may be inferred. In this The Copyright. no infringement of the copyright comes into existence. Infringement of copyright being a tort. Where. exhibited by commission or omission.[section 26] Authorize has been read as bearing its dictionary meaning of sanction. playing or showing a work. ii. however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental. 13 .answering claim of independent creation.

is to see whether a reasonable man. 14 . Having identified elements of expression not essential to every expression of the idea. but the meaning given to the word excludes liability when the defendant could not reasonably expect that another would infringe. N.. v. Look and Feel Test One of the surest and safest test to determine whether or not there has been a violation of copyright. Bangalore. 3. It is also necessary to show an act of infringement which has occurred as a result of the authorization. the decision maker must focus on whether 15 740.Supp. 1990). Paperback Software International15 the Court laid down the look and feel test as: 1. to elements essential to the expression of that idea (or in one of only a few ways of expressing the idea) or instead.authorizing is not the subject of specific exceptions. who is a spectator/viewer after having seen or read both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. or the Court may conceive. at 165.some conceptions or definitions of the idea.S. and choose some formulations. 37 (D.for the purpose of distinguishing between the idea and its expression. wher it was held that Lotus' copyright in its popular 1-2-3 spread sheet program protected the user interface and that Paperback in its spread sheet program had infringed Lotus' copyright by copying a number of aspects. Intellectual Property and Criminal Law. 1994.Mass. along the scale from the most generalized conception to the most particularized. The decision maker must focus upon whether an alleged expression of the idea is limited. 2. includes identifiable elements of expression not essential to very expression of that idea. National Law School Of India University. The decision maker must focus upon alternatives that counsel may suggest. F. Cited from Gopalakrishnan. In Lotus Development Corp.

17 refused to rely on this test.K. Bangalore. 16 788 F.A Panacea for the Paradox. National Law School Of India University. Abstraction-Filtration Test In 1992. A Case for Effective Legal Protection of Computer Programs in India. National Law School Of India University. Cir.. 2. 78 (D. Bangalore. N. 15 . But the Courts in the subsequent cases of Lotus Development Corp. 1 Crit Law (1998). Intellectual Property and Criminal Law. B. 1992). Intellectual Property and Criminal Law.P.S. so as to warrant a finding of infringement.D.will determine whether the protectable element of the programs at issue are substantially similar. N. v. 18 Tripathy. 11. The result of this comparison.those elements are a substantial part of the allegedly copyrightable work. Comparing whether 'creative expression' remains after following this process of elimination.Mass. Examining each of the parts for such things as incorporated ideas. at 167. 1994. which was an improvement18 over the previous look and feel test developed in the case of Computer Associates International v. at 15.Prabhat. 17 24 UPSQ 2d 1081 (N. Breaking down the allegedly infringed program into its constituent structural parts.S. expression that is necessarily incident to those ideas.19 1. Microsoft Corp. 1992). and P. 1992). and elements that are taken from the public domain in order to sift out all nonprotectable material 3. 19 23 USPQ 2d 1241 (2d. at 166.. 1994. Cited from Gopalakrishnan. and Apple Computer Inc.Supp. Borland International Inc16. Altai. but preferred the abstractionfiltration test. v. Cited from Gopalakrishnan.Cal. Ibid. with the structure of the allegedly infringing program.. there was another test called the abstraction-filtration test.

New York. if it can be shown that the defendant had the opportunity to view. Nimmer on Copyright. Such viewing will normally have occurred. 3. This approach is 20 Even if the plaintiff is unable to prove actual viewing by the defendant. if at all. or did not read it. In each case the burden should shift because the plaintiff often can no more prove actual physical possession than he/she can.But this test has been criticized on the ground that it is difficult to apply in practice and it seems artificial to break up a program into such constituent parts. assuming such possession. This definition is submitted to be erroneous. prove the act of reading and the memory of such reading. but is able to establish the reasonable opportunity to view. If the burden shifts to defendant where physical possession of the manuscript is shown notwithstanding a claim by defendant that he/she had forgotten its contents. Nimmer. Mathew Bender. seeming more just in terms of plaintiff's burden of proof20 to regard a reasonable opportunity to view as access in itself and not merely as creating an inference of access. the burden should likewise shift where the defendant denies that he/she ever obtained physical possession although he/she had a reasonable opportunity to obtain such possession. But this result is often reached through the Courts reasoning that the opportunity to view creates an inference of access. this should be regarded as a showing of access for the purposes of shifting the burden to the defendant to establish independent creation. 16 .. Such an approach tacitly if not expressly adopts the actual viewing definition of access. so it is often impossible for a plaintiff to offer direct evidence that defendant (or the person who composed defendant's work) actually viewed or had knowledge of plaintiff's work. For this reason it is clear that even if evidence is unavailable to prove the fact of actual viewing. Vol. this (when combined with substantial similarity) is sufficient to permit the trier to conclude that copying has occurred. Melville B. in a private office or home outside of the presence of any witnesses available to the plaintiff. which in turn creates an inference of 'copying'. 1985. Just as it is virtually impossible to offer direct proof of copying.. at 13-10. ACCESS Some Courts have defined access as the actual viewing and knowledge of plaintiff's work by the person who composed defendant's work.

but did not avail himself/herself of the opportunity to view. does not cover any bare possibility in the sense that anything is possible. Vol. New York. Access may not be inferred through mere speculation or conjecture. Mathew Bender. Reasonable opportunity as here used. Thus. 1985. or that they arrived at their results independently.consistent with what is perhaps the more prevailing definition of access.. On the contrary. the mere fact that plaintiff's manuscript is physically in the same city as that in which the defendant resides does not give the defendant an opportunity to view the manuscript notwithstanding the bare possibility of such an access. The trier of fact may conclude that the person who created defendant's work had. Melville B.21 When plaintiff must prove access: The owner must show that a causal connection is the explanation of the similarity between the work and the infringement. Nimmer on Copyright. 3. that is.the other possibilities being that he/she copied from the defendant.not a bare possibility. at 13-12. the opportunity to copy. On the other hand. that they both copied from a common source. 21 Nimmer. he/she does not have to show that the defendant knew that his/her copying constituted an infringement. the mere lapse of a considerable period of time between the moment of access and the creation of defendant's work does not preclude a finding of copying. the primary exclusive rights may be asserted against even the defendant who honestly believes that he/she purchased the right to reproduce the work. but this conclusion is with regards the ultimate issue of copying. There must be a reasonable possibility of viewing plaintiff's work. As with other rights of property recognized at common law. 17 .

In relation to infringement. Copyrights. rather than just of the ideas. save in the sense that he/she goes through a similar process of creation (for example where he/she draws his/her own cartoon for the same basic joke)22 Ordinarily in order to prove copying by the defendant. Thus this depends on the quantity rather than the quality of what the defendant has taken. the 22 Cited from Cornish. Section 16(3)(a) requires that a substantial part must be copied giving expression to a sense of fair play. is confined to cases where the defendant does not start from the completed work at all. they will not be easily dissuaded that the alterations have been sufficient. however. difficulties arise to the extent that this is not the case. But in the judges view if what is worth copying is prima facie worth protecting. but this an ill-defined distinction. If. But Courts are inevitably pressed with cases where the plaintiff's grievance is that he/she thought of the very first instance of a whole type of work (a detective story. Trademarks and Allied Rights.Where there has been copying and all or virtually all of a work is taken without emendation. Sweet and Maxwell. It has also been insisted that the copying must be of the expression of ideas. London. Intellectual Property: Patents. the plaintiff must prove access as well as substantial similarity. Once convinced that the defendant unfairly cut a competitive corner by setting out to revamp the plaintiff's completed work.R. 18 . the idea/expression dichotomy directs a necessary enquiry to restrict copyright to a taking from the protected work. Designs and Patents Act. at 363. et al) and wants rights over all subsequent variants. 1988. the taking of ideas alone. W. the proof of infringement is straightforward.. In this approach. it may considerably stretch the notion of expression. a restaurant guide. The Copyright. 1996. and there seems no better indicator of the judgement called for. 3 rd edn.

Where the works are artistic. the trier of fact may be permitted to infer copying notwithstanding the plaintiff's failure to prove access. 3. Where the works in question are non-dramatic. If plaintiff fails to establish prior creation. 1985. A defendant who is shown to have adopted the plaintiff's imaginative embellishments or plain errors will be in particular jeopardy. Mathew Bender. Where the defendant offers direct and highly persuasive evidence that access could not have occurred. the similarities must be so striking as to preclude the possibility that the defendant independently arrived at the same result. New York. It has been said that although expert testimony is not required to establish substantial similarity. If the identity between the two works may arise from identical functional considerations rather than from copying. Even if there is a very striking similarity between the two works. iii. it is required to establish striking similarity such as to dispense with the need for proof of access. Melville B. But the judges have hesitated to fetter the assessment of each case on its facts by the introduction of rules formally shifting the burden of proof from plaintiff to defendant at any stage of the trial. and the Court is testing sufficient similarity by appeal to the eye. ii. Nimmer on Copyright..similarity between plaintiff's and defendant's work is sufficiently striking and substantial. copying may not be inferred without proof of access in the following circumstances:23 i. Vol. at 13-15. iv. If both plaintiff's and defendant's works are trite or commonplace. 19 . stress is sometimes 23 Nimmer. Minus access. probably more by way of detailed incident and language must be taken before there is substantial copying.

he/she reproduces it in a second work. Suppose an author creates a work. The relation between the two end-products would be considered rather than the relation between the first work and what has been copied from it. at 13-17. Some concession in his/her favor seems called for. The fact that the author made his/her reproduction unconsciously (if he/she can be believed) would probably enhance any claim not to have infringed. at a time when he/she does not own the copyright. and subsequently. New York. in order to allow him/her to continue doing the kind of work at which he/she is proficient. Nimmer on Copyright. What constitutes proof of access Evidence which directly tends to prove either that the defendant viewed the plaintiff's work or had a reasonable opportunity for such a view is admissible to prove access. rather than resorting to independent creation. it may be inferred that the material was in fact received . from proof that a plaintiff mailed the allegedly infringed material to the defendant's principal office. Thus. 1985. unusual speed in the creation of the defendant's work may constitute some evidence that the defendant had access to and used the plaintiff's work. Similarity between the plaintiff's work and other materials created by the defendant which are not the subject of litigation may likewise constitute circumstantial evidence that the defendant had access with respect to his/her creation of the work in issue 24 Nimmer. 20 . Melville B. an idea that can be extended to the screen displays of a computer. 3. Vol.. Mathew Bender. Therefore.24 Sometimes access may be proved by mere circumstantial evidence. and the trier of fact may infer therefrom (unless contradictory evidence is to believed) that the persons responsible for defendant's work had prior knowledge of plaintiff's work.laid upon the feeling and artistic character of the plaintiff's work.

it may occur before. of his/her right against the defendant and that the defendant mistakenly believes that he/she is entitled to do what he/she is doing. Conduct alone can create an implied license in some circumstances where the plaintiff represents. yet he/she stands by 21 . Once a plaintiff fixes a defendant with notice of the facts relied on as constituting an infringement. that the defendant's conduct is not an infringement. or after the infringing act. the defendant cannot contend that he/she is without knowledge because he/she has in good faith a belief that in law no infringement is being committed. no part of his/her activity. Where he/she both know. ACQUIESCENCE/CONSENT Beyond the limitation periods for particular wrongs lies a further question: if a defendant has been left to pursue a course of infringement for a substantial period of time. One must consider the concrete situation disclosed by the evidence and then decide what knowledge is to be attributed to the defendant. can the right-owner be taken to have consented to its continuance? If so. at the time of. This consent may be expressly given or it may be implied from the circumstances. either in the way of express knowledge or knowledge that these particular defendants must have inferred.KNOWLEDGE The Court is not concerned with the knowledge of a reasonable man but is concerned with reasonable inferences to be drawn from a concrete situation as disclosed in the evidence as it affects the particular person whose knowledge is in issue. expressly or impliedly. even the most recent is actionable. The knowledge which has to be proved is actual not constructive. he/she will thereafter be estopped from asserting his/her right.

the situation has become such that it would be dishonest or unconscionable. Eastern Law House. He/she must have expended some money or must have done some act on the faith of his/her mistaken belief. Calcutta. The defendant. But Buckley LJ. 4. I think must be whether upon the facts of the particular case. he/she will be taken to have acquiesced in the wrong. In Willmott v. 5. must have encouraged the plaintiff in the expenditure of money or in other acts which he/she has done either directly or by abstaining from asserting his/her legal right. 105. to continue to seek to enforce it". for the person having the right sought to be enforced. They are as follows: 1. 2. Cited from Narayanan. 1995. Law of Copyright and Industrial Designs. 22 . for the doctrine of acquiescence is founded upon conduct with a knowledge of the legal rights. 25 (1880) 15 Ch D 96 at p. at 237. The defendant. The plaintiff must have made a mistake as to his/her legal rights. the possessor of the legal right must know of the plaintiff's mistaken belief of his/her rights.without asserting his/her right. The real test. the possessor of the legal right. must know of the existence of his/her own right which is inconsistent with the right claimed by the plaintiff. the possessor of the legal right. P. The defendant. in Shaw v. there is no need to show any element of delay.. Applegate26 commented: "I do not think it is clear that it is essential to find all the five tests set out by Fry J literally applicable and satisfied in any particular case. 26 (1978) 1 All ER 1223 at 131. 3. Barber25 Justice Fry has set out five requisites to establish acquiescence. If all this can be proved.

the event itself must be current and not the pretext for reviving historical information. demanding professional courtesy in the least. it is a moot point whether the use could nevertheless be justified for a reason beyond the confines of the statutory exceptions. 23 .This applies to the copyright in literary. industry and government. They exempt copying for certain purposes if it amounts to no more than fair dealing. 1. 2. 62 (artistic works on public display). 1988.This permits all works. Sections 31 (incidental inclusion). The role of these defenses is particularly important in the field of Education. 58 (record of spoken words). If there is substantial copying. The exception must be read in conjunction with a number of cognate provisions. It is plain from the parliamentary evolution of this defense that it may in principle cover research in commerce. other than photographs. What is fair will presumably vary to fit each case. Photographs have been treated differently in order to preserve the full value of holding a unique visual record of some person or event. The three most important exceptions turn upon a qualitative assessment.27 27 The Copyright. to be used for reporting current events. In these cases the Courts are left to judge fairness in the light of all the circumstances. Reporting Current Events. dramatic.FAIR DEALING The requirement of substantial taking prevents the owner from objecting to minor borrowings from his/her copyright work. To come within the exception. A spate of photographs of Princess Diana and the men in her life being published prior to her untimely death (at the hands of the paparazzi?) was not justified by the British tabloids with a copyright license. musical and artistic works and published editions. Designs and Patents Act. Research or Private Study.

Where literary. Policy Against Legal Protection. one precondition of fairness being that the source should be sufficiently acknowledged (as is the case with footnotes/endnotes). It may concern the ideas expressed as well as the mode of expression (particularly relevant in cases of book reviews. PRESUMPTIONS IN COPYRIGHT INFRINGEMENT ACTIONS There are some statutory presumptions which throw the legal (persuasive) burden of proof upon the defendant to infringement proceedings. because it embodies another copyright work to an extent which requires a license and that authority has not been obtained.3. heresy.This is the most general exception. blasphemous. allowing works to be used for purposes of criticism or review (of themselves or another work). Criticism or Review. musical or artistic copyright is concerned they are: 24 . dramatic. PUBLIC POLICY The judges have kept the power to refuse protection to a copyright owner on public policy grounds. irreligious. or cease to be enforceable. Policy Favoring Dissemination. defamatory.The ability to protect confidential information particularly in avoidance of breach of confidence cases is of utmost importance here. because it is obscene. as earlier mentioned) and the Courts will not permit wholesale borrowing to be dressed up as critical quotation. A work which satisfies the general criterion of originality does not lose its copyright. 2. 1.It justifies the refusal of relief on a variety of grounds which express disapproval of the content of the work. sexually immoral. or seriously deceptive of the public.

then ii. iii. films and computer programs.i. That. are true. there are presumptions that statements naming the copyright owner. where the author is dead or unidentifiable when the action is brought. As regards copyright in sound recordings. or giving the date or place of first publication. copyright subsists and was owned at first publication by the person named as publisher. and that he/she did not produce it in circumstances (such as in the course of employment) which would deprive him/her of the copyright initially. If this does not apply. That a person named as author is the author of a work. That if first publication of a work qualifies it for copyright. 25 . the work was original and was first published where and when the plaintiff alleges.

or has only an equitable title. he/she should apply for an interlocutory injunction for the purpose of preserving his/her rights from further interference pending the trial of the action and if the granting of such an injunction will not seriously interfere with the defendant. it may be granted although the plaintiff does not fully prove his/her title to the right alleged to be infringement. They are normally granted for a short period. or to prevent the defendant from doing something that would injure the plaintiff’s chance of getting the relief he/she is entitled to at trial. Ex Parte Injunction An injunction will only be granted ex parte in cases where the plaintiff has shown clearly that there is a real urgency. or although the quantity of the defendant’s work which constitutes the infringement has not been ascertained. Interlocutory Injunctions It is often of importance for a plaintiff to obtain immediate protection from a threatened infringement of his/her copyright. pending the trial and the plaintiff can be properly protected.REMEDIES There are many instances where justice can only be done if the Court acts to prevent further damage to the plaintiff pending trial. An interlocutory injunction will not. immediate notice to be given to the defendant. by the defendant being ordered to keep an 26 . however be granted. usually to the first day on which there can be a hearing of the matter. In such a case. where the defendant might suffer irreparable injury from an injunction restraining him/her from publishing. making it impossible to give the normal notice and that he/she has not delayed in applying for the injunction.

How far this will be assumed from the very fact of the defendant's piratical sales depends on the particular circumstances. The defendant has the opportunity to submit written evidence in reply. 1974. nor will it normally be granted where a bona fide defense of fair dealing has been pleaded. Anton Piller Orders29 The usual basis for claiming substantial damages for infringement relates to the commercial value of the work.because the defendant's infringements have lost the plaintiff his/her own opportunities for sale. and others v.G. v. else he/she will normally resolve the matter by giving the plaintiff an undertaking not to do the acts specified in the notice of motion. see also E. This must be accompanied by written evidence supporting the plaintiff’s case and must be sufficient to establish a prima facie case on each of the requirements for the grant of such an injunction. or if the plaintiff has been guilty of undue delay in coming to the Court or his/her conduct has amounted to acquiescence in the infringement.28 The application for the interlocutory injunction is made to the court by notice of motion.account. Manufacturing Process Ltd.M. Marylebone (ed. 9. Halsbury's Laws of England.N. As part of such a claim. (1976) RPC 719. injured reputation and so lost him/her sales. 27 . 28 Lord Hailsham of St.[1975] 1 All ER Ch D 418.because the plaintiff has lost the chance of licensing or selling his/her copyright to the defendant. or if there is any substantial doubt as to the plaintiff’s right to succeed. Vol. if he/she wishes to contest the motion. Butterworths. the plaintiff is entitled to show that the cheap or vulgar form of the defendant's piracy. the claim is for the misappropriation. at 610. as with patents.Pandit. London. K. Ltd. the claim is either for compensation for lost profits.). 29 Based on the case decision in Anton Piller K. Alternatively. which is served on the defendant.I.

In Anton Piller's case. but they are equally available. video and other copyright piracy and the imitation of popular trade marks. keep infringing stock or infringing papers. An injunction against infringement may be part of the order. to seize the infringing material and secondly. for an order that the defendant permit him/her (with his/her solicitor) to inspect the defendant's premises and to seize. it enables the plaintiff to enter the premises. the Court of Appeal approved a procedure that is of major practical importance to some owners of intellectual property rights. Anton Piller Orders have been a response to growing concern over the current volume of sound recording. The defendant may be required to deliver up infringing goods. or the destination of stock passing through his/her hands. They are invaluable in cases where there is a real possibility that the defendants may destroy such material before any application inter partes can be made. trade mark or other rights. to obtain information as to persons from whom the defendant obtained the supplies of the infringing material and the persons to whom the defendant in turn has supplied the infringing material. in breach of confidence cases. for instance. 28 . copy or photograph material relevant to the alleged infringement.] But an Anton Piller order will not be passed where the defendant are reputable public companies and there is no reason for thinking that they would not punctiliously comply with any order of the Court. The plaintiff applies to the High Court in camera without any notice to the defendant. for instance.Purpose and Need [The purpose of an Anton Piller order is that. in extreme cases where there is very clear and strong prima facie evidence of an infringement of copyright. and even to give information. first. about his/her sources of supply.

but more important. the Court will have the widest discretion as to how to deal with it and if it turns out that the order was made improperly in the first place. There are certain safeguards which are said to distinguish this sort of order from a search warrant which are: 1.30 The order will be made if the plaintiff i. Shows that the damage. and Provides clear evidence that the defendant has in his/her possession incriminating documents or things and that there is a real possibility that this material will be destroyed before any application inter partes can be made. 2. but at his/her peril either of further proceedings for contempt of Court. It is. the refusal to comply may be the most damning evidence against the defendant at the subsequent trial. The defendant must be given time to think and must be informed of his/her right to consult his/her own solicitor and to apply to discharge the order. at 48. 1996. Trademarks and Allied Rights.R. actual or potential to him/her is very which case. therefore open to him/her to refuse to comply with such an order. The plaintiff must also give a cross-undertaking in damages. who is an officer of the Court..Technicalities The form of the order makes it plain that the Court is not ordering or granting anything equivalent to a search warrant. must attend. of course. ii. The Order is an order on the defendant in personam to permit inspection. Sweet and Maxwell. iii. Intellectual Property: Patents. 3. The plaintiff's solicitor. London. Provides an extremely strong prima facie case of infringement. 30 Cornish. 3rd edn. the contempt will be dealt with accordingly. W. 29 . of course. Copyrights.

Where the disclosure is serious and substantial it should only allow use of the yield for good and compelling reasons. The process has been labeled draconian and essentially unfair in that it condemns a defendant without having been heard. a means of shutting out the defendant from all business. Where the Anton Piller order has been obtained on the basis of non-disclosure of material facts. The Courts strive to be watchful for plaintiff's who go to excess. not the plaintiff's advisers. does not provide a ground for challenging the order itself. it will not affect the situation if the order was obtained mala fide or by some material non-disclosure. Even if the non-disclosure was innocent. to decide whether the order is justified. the Court will not lightly allow a party to keep the benefit of it. the defendant will know nothing until the inspection is demanded. the judge has a discretion to exclude evidence obtained as a result of the order. This it has been said. If a single judge is satisfied prima facie that there is infringement and the likelihood of serious injury. should err on the side of excess. It takes considerable temerity then to challenge the findings on which the order was made. legitimate as well as illegitimate. The proceedings turn upon the plaintiff's evidence alone and they occur in camera. seeking for instance. for it is for the Court. The ground on which defendants have challenged orders with some regularity is the plaintiff's failure to fully disclose all material circumstances. It is no 30 . However.If consequent upon the grant of an Anton Piller order the evidence shows that the order was in fact justified then the fact that the evidence before the learned judge was not as strong as it ultimately became.

once he/she is on the record. wherever found and the copies so seized must be produced before a magistrate as soon as practicable. but should be returned after necessary information has been extracted from them. 1957].answer to a charge of inadequate disclosure that enough was shown to justify the making of the order. After the Act. upon his/her undertaking to keep it in safe custody and produce it. Now Section 64 provides that where any police officer not below the rank of sub-inspector of police is satisfied. it is the 31 . No Court inferior to that of a Presidency Magistrate or a Magistrate of the First Class. or is likely to be committed. they should be retained until trial. Ordinarily however. seizure of infringing copies by police was possible only after a magistrate had taken cognizance of an offence relating to infringement under Section 63 [The (Indian) Copyright Act. he/she may seize without any warrant all copies of the work and all plates used for the purpose of making infringing copies of the work. Moreover such seizure could only be of infringing copies and did not extend to plates used for making infringing copies. the powers of the police have been widened. Search and Seizure Prior to the Copyright Amendment Act. and where infringing material has been seized it should be handed over to the defendant's solicitor. Moreover. if required. that an infringement or an abetment of infringement of copyright in any work has been. if business records have been seized. at the trial. Any person can make a criminal complaint and a magistrate will be competent to take cognizance of any offence upon receiving a complaint of facts which constitutes such offence irrespective of the qualifications or eligibility of the complainant to file a complaint. can try an offence under the Act. 1984.

and even to exemplary damages. is the first statutory use of the term. The House of Lords uphold this plea in any case where there is more than a remote or fanciful chance that a serious charge. Because the upshot was to offer a haven to those apparently most culpable. A joint author can also file a complaint. encompassing 'patents.owner of the copyright or any person who has an interest in the copyright. Right against self-incrimination The acute difficulties of balancing efficacy against fairness have surfaced equally over the element of instant discovery in any Anton Piller Order. which requires answers on sources of supply or customers. defendants at first sought to plead in response a privilege against self-incrimination. attracting heavy penalties might result. The conduct of the criminal proceedings is governed by the Criminal Procedure Code. which might be appropriate against a street trader. Parliament proved willing to intervene. trademark. Since these answers would in many cases furnish evidence of criminal conduct. copyright. technical or commercial information or other intellectual property ': Section 73(5). Section 72. If the order was not justifiedwhether or not it is subsequently discharged. in proceedings for infringement of intellectual property rights31 or passing off. By the Supreme Court Act 1981. This meant that the privilege was available to those who ran substantial piracy operations and so were likely to be charged with conspiracy as to defraud. registered design. for example the licensee who files a complaint. The defendant is protected only by the discretion on costs and the plaintiff's cross-undertaking in damages.the defendant will be entitled to compensatory damages for the contumely or affront in the way the proceedings were used against him/her. as distinct from (say) a summary offence under the copyright or trade descriptions legislation. 32 . a defendant 31 This.

Discovery of names Sometimes the only lead that a right-owner can pick up about infringing goods is that they are passing through the hands of some person in the course of transit. But discovery to find the identity of a wrongdoer is available against anyone whom. The Court may order such a person to disclose the names of the consignors or consignees responsible. not possible to use any statement or admission so procured in any equivalent criminal proceedings. It is however. Discovery will not be ordered against anyone who can give information as to the identity of the wrongdoer. if this is the only way for the plaintiff to discover whom he/she should act against and of the person against whom the order is made. The principle applied in such cases has been stated as "where a person. albeit innocently and without incurring any personal liability became involved in the tortious acts of others. It is not available against a person who has no other connection with the wrong. he/she came under a duty to assist one injured by those acts. by giving him/her full information by way of discovery and disclosing 33 . is shown (however unwittingly) to be facilitating the wrongful acts. That person may however not be infringing or be likely to do so. the plaintiff has a cause of action in relation to the same wrong. Interlocutory orders to furnish the names and addresses of persons responsible for supplying infringing copies to the defendant can be obtained in suitable cases. than that he/she was a spectator or has some document relating to it in his/her possession.may after all be compelled to answer a question or comply with an order which would tend to expose him/her to proceedings for a related offence or recovery of a related penalty.

not to the uncovering of assets belonging to the defendant which may be needed to satisfy judgement in the action. Orders are frequently made which contain both Anton Piller and Mareva terms. where the order relates to other assets. so also. in his/her statement of claims. he/she will not be deprived of things needed for living and conducting legitimate trade. Inspection English Courts have generally been careful to protect defendant against speculative suits that are no more than fishing expeditionsproceedings begun to find out what. there have been orders directed to the seizure of specified valuables. Accordingly. it mattered not that such involvement was the result of voluntary action or the consequences of the performance of a duty statutory or otherwise. in which according to the evidence. particularly if they may otherwise be removed from the jurisdiction. If he/she does not give them and does not comply with any order for further and 34 . and for that purpose. These may relate to bank accounts and other financial assets. Interrogatories. There is no rule of evidence that evidence disclosed under compulsion cannot subsequently be used against the person disclosing it either in another civil action or in a criminal prosecution. Just as a defendant is permitted an allowance for living expenses out of financial assets that are subject to a Mareva order. infringement actions cannot be launched effectively unless the plaintiff can specify. particulars of at least one act of infringement. Equally.] Discoveries.the identity of the wrongdoers. Mareva Injunction [More in general evolution in interlocutory procedure: the Mareva Injunction is directed. if anything might really be claimed. the proceeds of infringement have been invested.

discovery of documents and the administration of interrogatories are steps. If the documents discovered contain confidential information the other party may be restrained from using the information for other purposes such as revelations in the press or further litigation. Provided that he/she can show enough to repel attacks on his/her pleadings. in the race to get ahead. The plaintiff may need to discover what the defendant is doing.a fear that. It may try to alleviate the defendant's anxieties by requiring an independent expert to make the inspection. which on occasion may provide important evidence or admissions. But while it will not require first to be satisfied prima facie that the defendant is infringing. and it may 35 .better particulars he/she will be unable to defend himself/herself on a motion to strike out pleadings or actions. Beyond this there are special procedures for cases involving industrial techniques. is sometimes acute. all involved. In the United States such steps have been inflated into a form of discovery that allows wide-ranging preliminary cross-examination of party by party. but the defendant may fear that the inspection by him/her will reveal the defendant's own secrets. but possibly on condition that nothing is copied or taken away and that. the plaintiff will carry his/her case forward to the stage of pre-trial preparations. are placed under obligations to respect confidence. As in other types of civil litigation. Accordingly. it may need to be shown that there are formidable grounds rather than a mere suspicion. The Court has power to order inspection even against this sort of objection. a defendant's stake is likely to be high. In the main it is not isolated acts of infringement but runs of production that provoke the owner of intellectual property rights into taking action. then it may have to be done by the plaintiff and his/her advisers.

being tortious in character. if the author were to make a confession. But under current practice. This problem is especially rampant in all developing countries. More importantly. with poor enforcement mechanisms contributing in no small measure to it. may be struck out for want of prosecution. as well as inordinate delay.well become higher if proceedings against him/her are delayed until he/she has established commercial production and tied himself/herself to distribution arrangements. but then allowed to stagnate. which are more the norm than the exception in countries like India and China. the author is presently writing this research paper on a pirated copy of Microsoft Word! 36 . this will only be done if there is a real prejudice to the defendant. Such prejudice might arise if witnesses in a patent action would have to testify to the state of an art which has receded a considerable distance in time. which is commenced within the limitation period. it has to do with a situation wherein people are unable to afford them. Infringement of copyright in software occupies the pride of place among all cases of copyright infringement. Such clandestine or covert dealings. of the wrongful act. Only the actions for breach of confidence may differ (when not founded in contract) because of its equitable origin: probably the only principle is that a period of too great delay (laches) must not be allowed to lapse. must normally be begun within six years. Software Piracy: the norm or the exception. yet they are indispensable tools for their day to day operations in a fast growing technological world. The same applies to actions based upon breach of contract. The question here is: within what period after a particular infringement has been perpetrated must a writ be issued? The various infringement actions in our field. In fact. An action. costs the industry a good billion dollars every year.

Kanwal. 1982. No. “Intellectual Property in Computer Programs: Weaknesses of the Indian Copyright Act. 34 World Intellectual Property Organisation (hereinafter referred to as WIPO). JILI.1. of causing a function.487.  ‘Supporting Material’-which is any material other than a computer program or a program description. More importantly. (1978). Computer Software: The Essential IngredientsComputer Software is explained to constitute the following three elements34:  ‘Computer Program’. schematic or other form. in verbal. p.28. the lack of specially trained judicial machinery and a capable force to deal with such complex and varied infringements.p. it is necessary to understand as to what constitutes software.e.M.4. 37 .. a problem description and user instructions. Puri.which is a set of instructions capable. in sufficient detail to determine a set of instructions constituting a corresponding computer program.The process by which the piracy is effected is very simple and that explains the all-pervasive nature of the same32. when put in a computer. P. National Law School Journal.32. In this context.  ‘Program Description’-which is a comprehensive procedural presentation. Model Provisions on Protection of Computer Software.Vol. 1957”. Vol. 33 Ibid. perform or achieve a particular 32 Dhar. as to understand what is being protected. See also. Copyright in Software. has not helped in any manner33. Computer Programs: machine having information processing capabilities to indicate. 1989. created for aiding the understanding or application of a computer program. i. task or result.

36 It is well settled that computer programs are subject to copyright37.The main objection has been the absence of readability or appearance to the eye or visibility. 35 36 Ibid. and  Source code. However.The Indian Copyright Act defines a computer program as “a set of instructions expressed in words. 38 Supra n.Macintosh Computers. The underlying source code is generally not available to the public.Supra n. c.f.15. Supra. 37 See the decision of the Canadian High Court in Apple Computers v.” Computer programs are written in two ways:  Object code. the proposed protocol to the Berne Convention regarding copyright protection for computer programs. The question is whether the absence of these would present a difficulty in proving whether there was an infringement.35 Since programs in source code are not comprehensible to the computer they are translated into object code by another program. However. A program called the Compiler translates the source code into object code. Source code satisfies the various tests and is thus subject to copyright38. 34. schemes or in any other form including the machine readable medium capable of causing computer to perform a particular task or achieve a particular result.160. The TRIPS agreement in the GATT final agreement also talks of the same.. p. there have been umpteen objections to making source code subject to copyright on the grounds that There is a lack of accessibility. codes. 38 . WIPO documents in this regard. The ‘pirate’ would require a compiler to convert the programme from source code to object code. that is not of great relevance as the software is distributed only in the object form. Statements written in machine language is written in object code and language that is understandable only by the programmer is called source code. See also. The tradition has been to protect works produced in a written text .15. n.

40 This is for those who require merely the executable program. Also. Besides India has signed the Berne Convention and the GATT Final Act and the definition has to therefore be interpreted to include source code and object code. Supra n.2d.which is not that easy. as per the Indian Copyright Act. and  At the source code level41. The ROM contains electrical impulses that embody instructions that emanate from a written description. Piracy in software can occur at two levels:  At the object code level40. Also see Apple Computer v. The only question is whether the object code is subject to copyright39. all programmes expressed in codes is entitled to protection if it can perform a particular task or achieve a particular result. there must be a manual comparison of the two works in the case of software such a comparison is possible. The decompilation or disassembly of the object form is necessary. 39 . 1240.34. 39 The problem that is put forth which also seems to be a problem in proving piracy of works in the object code seems to be that the object code is in the form of sequences of electrical impulses and that this is not a material form. See. The other problem is with regard to the perceptibility –visibility question and he contention that an object programme cannot be perceived by the senses and therefore must not be subject to copyright. As per Section 45 of the Indian Evidence Act. a process of "reverse engineering” is necessary. The computer can reproduce an object code from a magnetic tape. 41 This is for competitors who seek to understand the structure and logic of the program. In order to find out whether there has been a violation of the source code. 714 F. This is warped logic because the very reasons enumerated just now put forth the case that piracy of object code can be done by a person who has no knowledge at all in the area and detection of such piracy is all the more difficult owing to these reasons. Franklin Computer Corp. It is in such situations that expert intervention is actually necessary. Besides if there is no protection to the object code there is no point in protecting the source code. floppy disk or ROM in a printed form. thus object code is covered. This means a better way of policing such violations must be evolved. an expert may be employed to prove a point involving any “foreign law or science” and since such a comparison involves an expert’s evidence an expert may be employed. Since comparison is what is necessary it must be asserted that comparison is definitely possible because programmes can be read out of ROM and therefore compared. Object code is only a mechanical translation of the source programme into another language. Proving Piracy: Just as in the case of written works.

a competitor of Computer Associates. Inc. desired to develop an "adapter type" program to allow its scheduling program to be used on an additional operating system. See generally. McDonald's Corp. menus. In the 1990's the courts began restricting protection of non-literal elements in computer programs under copyright law. structure and look and feel. all that is necessary is a verification of the bar code with every copy of the original program. Inc45. The courts even went so far as to apply the notion that taking the "total concept and feel" of a computer program (which had been found to be illegal with respect to television characters)42 constitutes a copyright infringement43.2d 1152 (9th Cir. 1997). In the Altai case. Scott On Computer Law. Section 3. 44 982F.Where object code has been blindly copied. v. See also. and Lotus Dev. Inc44. Second Edition.2d 693 (2d Cir. 118 F. and a violation can be detected. 1992). 45 489 F.. 1995). Sid and Marty Krofft Television Productions v. Inc.. Altai. v.3rd 955 (2nd Cir. Inc. The two leading cases in this regard are Computer Associates. v. Softel. an "ADAPTER" to allow the scheduling program to be operated on a number of different operating systems. Altai. Computer Associates had developed a scheduling program and. 562 F. "" Non-Literal Elements of Computer Software: The non-literal elements of computer software are elements of the software other than the source code and object code such as the overall layouts. 1977). Corp. At one point there appeared to be a significant amount of protection for the non-literal elements of computer software.3rd 807 (1st Cir. Borland Int'l. Altai hired an employee of Computer 42 43 See. separately. 40 .47(C)(1). Dragon Medical & Scientific Communications.

such as Visual Basic. After Computer Associates filed suit. At the lowest level are the actual instructions organized into a hierarchy of modules. and especially with Windows based object oriented programming. admitted liability for the direct copying and reconstructed the program without any literal copying. and organization" are no longer necessarily relevant to how computer programming is done. The first step is "abstraction" where the court goes through a sort of "reverse engineering.) The second step is filtration of each level of abstraction. brought over code from the ADAPTER program. The court went on to describe its three step test for determining what. as compilations may be protectable under the Copyright Act. 41 . Altai realized what had happened. it is difficult to point to any particular sequence of a computer program. if any. without Altai's knowledge. The Court of Appeals approved the statements of the district court below that had said "references to structure." The court determines what are the various levels of abstraction of the program. sequence. (Note that a selection and organization of modules could involve creativity that is protectable if at that level the program survives Step 2 "filtration" (discussed below). of the non-literal elements of a computer program are protectable under copyright law. At a higher level are the functions of each module.Associates who. With object oriented programming. The court had to determine whether the non-literal copying constituted an infringement. Here the court filters out the following at each level: (a) Elements that constitute ideas or are dictated by efficiency.

as well as an assessment of the copied portion's relative importance with respect to the plaintiff's program. Lotus' only contention was that Borland had unlawfully copied its menu command hierarchy. From the filtration step. The Court of Appeals reversed. and (c) Elements taken from the public domain. The court did hold that there was a possibility of misappropriation of trade secrets. many different words could be used for the same commands.(b) Elements dictated by external factors such as standard techniques rather than creative originality on the part of the programmer. There was no contention that the underlying code or protected elements of computer screen displays had been copied. the Court of Appeals said: 42 . Borland. In Lotus v. The trial court concluded that Lotus' menu hierarchy was protectable expression because. §102(b).C. for example." The Court of Appeals also held that the district court's appointment of its own expert witness was appropriate. The third step is the comparison test. Referring to 17 U. Borland had developed a competitive spreadsheet program that included an option which provided "a virtually identical copy of the 1-2-3 menu tree" contained in the Lotus spreadsheet program. the court held that there was no infringement.S. the court has determined what of the plaintiff's program is protectable expression and then the court determines whether or not the "defendant copied any aspect of this protected expression. The court said that state trade secret law is not preempted under Section 301 of the US Copyright Act. Following these tests.

804 (1996). process. at the same time. or procedure. The Supreme Court granted certiorari to Lotus on an appeal from the First Circuit Court of Appeals decision. courts.We hold that the Lotus menu hierarchy is an uncopyrightable method of operation. 46 116 S. In the author's view it also allowed for monopoly protection of some matters that would not have ever been protected by copyright law that are too easy to create in the software context to fairly be the subject of patent protection. patent and copyright law should be developed for the protection of computer software. but the Supreme Court affirmed by default when it turned out that the Justices were equally divided on the issue. became more comfortable with granting patent protection to computer programs. The author submits that a modified hybrid of trade secret.46 As courts became reluctant to protect non-literal elements of computer programs under copyright law.Ct. Shifting much of the protection for non-literal elements of computer programs from copyright to patent law has created a situation that makes it much more difficult for start up companies to protect their software because of the much higher expense of filing for patent protection. We do not consider whether it could also be a system. 43 . There is so much programming code created every day that much of the software for which patent protection is granted is already being used by others in the industry who just have not gone to the trouble of applying for a patent.

Members shall be free to provide for criminal procedures and penalties to be applied. The latter provides its own amendment procedures. Sweet and Maxwell. Article 9 is either ultra vires or should be read with the prefatory words. the general term of protection is for the life of the author and 50 years. 50 years from the end of the calendar year of the making of the work. or where authorized publication does not occur. TRIP’s provides under Article 61 for criminal remedies against the infringement of intellectual property rights. is calculated on a basis other than the life of a natural person. Article 9. “such term shall be no more than 50 years from the end of the calendar year of authorize publication”. Michael.. at 45. In other words it purports to amend the Berne Convention.47 Under Article 7(1) of the Berne Convention. London. As this procedure has not been followed. Consequently upon India signing the GATT and entering the global market economy. other than a photographic work or a work of applied art. 1996.1 of the TRIP’s agreement obliges members to comply with Articles 1 to 21 of the Berne Convention and the Appendix thereto. Trade Related Aspects of Intellectual Property Rights: A Concise Guide to the TRIPS Agreement. In addition. Article 12 of the TRIP’s Agreement provides that whenever the term of protection of a work.. a number of changes have been made in The 47 Blakeney.INTERNATIONAL CONVENTIONS The TRIP's agreement of Final Act embodying the results of the Uruguay Round of Multilateral Trade negotiations to which India is a signatory. requiring revision conferences in one of the countries of the Berne Union with voting proceeding on the basis of unanimity.for the purposes of this Agreement. has tried to adopt the regime of copyright protection provided for in the Berne Convention. 44 .

N. 1957 by the Amending Act of 1994. at 146. 1985. Finally. Tripathi Private Limited. was finalized at Tunis. H. and Know-How Contracts. to give effect to the obligations arising from the signing of the GATT. mention must be made here of the Model Law of Copyright blessed by both UNESCO and WIPO for developing countries.(Indian) Copyright Act. while ensuring appropriate international protection for their own works.the Berne Convention for the protection of literary and artistic works and the Universal Copyright Convention were revised in Paris. Intellectual Property and Competition Law in India with Special Reference to Patents.. Copyrights.M. the two convention.M.48 To cater for the specific needs of developing countries and to facilitate the access of these countries to foreign works protected by copyright. that is . 45 . 48 Jhala. Trademarks. Bombay.

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