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
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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.

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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
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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.

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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
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the

two is that secondary infringement

requires

the

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.

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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.

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Does the defendant's act come within the scope of any of the exceptions to the infringement listed in Section 52? 5. 2. Does what the defendant done. The date of coming into existence of the work. The term of copyright has not expired on the date of filing the suit or on the date of committing the alleged infringement. or the acts proposed to be done likely to constitute infringement when completed. 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. 5 . pre-trial pending work requires a lot of evidential analysis on which to structure the suit.EVIDENTIARY ASPECTS In a copyright infringement case. Particulars of the act done by the defendant. 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. The acts done or likely to be done by the defendant would constitute infringement of the copyright work. alleged to constitute infringement. 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. or proposes to do constitute infringement of the copyright in the work? 4. 4. 5. Does copyright subsists in the work alleged to have been infringed? 3. The copyright work is original or otherwise qualifies for subsistence of copyright under the Act.

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

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

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

but a translator from one language into another or a reporter of legal decisions or of a speech is an author. 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. Vol. at 548. 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 he/she may by himself/herself take proceedings for infringement. although the idea of the work may have been suggested by another. Halsbury's Laws of England. the compiler of a directory or work of reference collects written material from a large number of individuals and arranges and publishes the result. the copyright is owned by the other joint author(s). 1974. compiles. 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). commissioned artistic works. works of joint authorship. at the time when the photograph is taken. composes or draws the work in question. London. The author is the person who actually writes. the compiler and not the individuals supplying the information. 9 . 7 As to works by an author under a contract of service or apprenticeship. 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). Marylebone (ed. 8 Lord Hailsham of St. dramatic. or the work may have been subsequently altered in accordance with the advice of another. is the owner of the material on which it is taken. musical or artistic work is entitled to the copyright in the work.). The author of a photograph is the person who. Butterworths. 9.8 Where. etc. however.Subject to certain exceptions7 the author of a literary.

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

Intellectual Property: Patents. London. if a novel is turned into a play. Mathew Bender. but only one repeated phrase was taken. Vol. Intellectual Property: Patents. the inherent probability of coincidence…10 Also. W.R.11 Where the defendant has reworked the plaintiff's material.. Trademarks and Allied Rights.. Sweet and Maxwell. the objective similarity of the defendant's work. at 364. a work may be copied by imitating a copy of it. under the present law. thereby neatly adjusting the scope of protection to the author's literary effort. Copyrights. 11 . 13 In Warwick Film v. 3rd edn.B. 12 In Joy Music v.. W.it.R. 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. New York. But a defendant who took from large passages from the transcript. Whatever may have been the position in the past. there comes a point beyond which the plaintiff has no claim.but the causal chain must run in the right direction. he acquired copyright in the whole by virtue of his work in selecting and providing linking passages. London. at 614. a song lyric had been parodied in pursuit of Prince Philip. 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. 12 Thus. 11 Nimmer.. Sunday Pictorial [1960] 2 Q. proof of copying depends on…a number of composite elements. 587. Francis Day v. cited from Cornish. Copyrights. which is in turn converted into a ballet. Eisinger [1969] 1 Ch. would book reviews constitute a copyright infringement if we extended this logic?13 10 Per Wilberforce J. Sweet and Maxwell. at 13-4. the degree of familiarity with the plaintiff's work. but very little of his own work was held to infringe. 60. 508 where an author published an edited version of Oscar Wilde's trials an earlier version previously having appeared. labor and judgement to secure copyright for his/her effort does not. 1996. In such cases. Nimmer on Copyright. 3. 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. 1985. and that with pointed variation. Trademarks and Allied Rights. 1996. settle the question whether he/she has infringed. genuinely believing it to be his/her own. Melville B. the causal connection for indirect copying of the drawing will be established. the fact that the defendant has himself/herself added enough by way of skill. Likewise. at 361. Bron [1963] Ch. 3rd edn.

although proof of access and substantial similarity are sine qua non to a finding of copying. Vol. except where the similarity between the two works is such that no explanation other than copying is reasonably possible. Mathew Bender. New York. 12 . 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. the trier of fact may uphold a finding of no copying if such trier believed the defendant's evidence of independent creation. 1985. 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. Nimmer on Copyright. Therefore copying is established indirectly by the plaintiff's proof of access and substantial similarity. 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. Since a plaintiff ordinarily can do no more than offer evidence of access and substantial similarity in proving the act of copying. Melville B.. despite proof of access and substantial similarity.14 But. skill and judgement. 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 . Apart from the unavailability of witnesses.Where the plaintiff's work records information. copying may occur without any objective physical manifestation since copying from memory is no less actionable than is copying from direct view. such evidence does not require the trier of fact to find copying. at 13-6. It is generally not possible to establish copying by direct evidence.Nimmer. 3. since it is rare that the plaintiff has available a witness to the act of copying.

In line with theses broad synonyms. Designs and Patents Act. may reach a degree from which authorization or permission may be inferred. 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. 1988 has introduced three forms of infringement: i. exhibited by commission or omission. in the ordinary course. 13 .answering claim of independent creation. it has been said that indifference. ii. iii. playing or showing a work. 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. 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. no infringement of the copyright comes into existence. Where. Infringement of copyright being a tort. countenance or approve. In this The Copyright. Permitting performance is expressly stated to be subject to the defense of reasonable belief that there would be no infringement. etc.[section 26] Authorize has been read as bearing its dictionary meaning of sanction. 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.

some conceptions or definitions of the idea. Cited from Gopalakrishnan. Bangalore.for the purpose of distinguishing between the idea and its expression. 3. 37 (D. National Law School Of India University. In Lotus Development Corp. 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. The decision maker must focus upon whether an alleged expression of the idea is limited. and choose some formulations. or the Court may conceive. the decision maker must focus on whether 15 740. It is also necessary to show an act of infringement which has occurred as a result of the authorization. Paperback Software International15 the Court laid down the look and feel test as: 1. 2.S. includes identifiable elements of expression not essential to very expression of that idea. Intellectual Property and Criminal Law. 1990). along the scale from the most generalized conception to the most particularized. The decision maker must focus upon alternatives that counsel may suggest.. F. is to see whether a reasonable man.authorizing is not the subject of specific exceptions. but the meaning given to the word excludes liability when the defendant could not reasonably expect that another would infringe. 1994. Look and Feel Test One of the surest and safest test to determine whether or not there has been a violation of copyright.Supp. N. to elements essential to the expression of that idea (or in one of only a few ways of expressing the idea) or instead. 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. 14 . v. at 165. Having identified elements of expression not essential to every expression of the idea.Mass.

Cal. The result of this comparison. at 15.Mass. 1994.S. v. Bangalore. expression that is necessarily incident to those ideas.. Intellectual Property and Criminal Law. there was another test called the abstraction-filtration test. 11. 16 788 F. at 166. at 167. 2. B. N.. Altai. Cited from Gopalakrishnan. Bangalore. and Apple Computer Inc. Ibid.S. 1 Crit Law (1998).D.A Panacea for the Paradox. 18 Tripathy.. and P. 15 . but preferred the abstractionfiltration test. 1992).those elements are a substantial part of the allegedly copyrightable work. so as to warrant a finding of infringement. Breaking down the allegedly infringed program into its constituent structural parts. N.19 1.17 refused to rely on this test. But the Courts in the subsequent cases of Lotus Development Corp. 78 (D. with the structure of the allegedly infringing program. Intellectual Property and Criminal Law. Cir. 1992). National Law School Of India University.K. Cited from Gopalakrishnan. 1994. Borland International Inc16. which was an improvement18 over the previous look and feel test developed in the case of Computer Associates International v. and elements that are taken from the public domain in order to sift out all nonprotectable material 3. Comparing whether 'creative expression' remains after following this process of elimination.will determine whether the protectable element of the programs at issue are substantially similar. 19 23 USPQ 2d 1241 (2d.Prabhat.Supp. 17 24 UPSQ 2d 1081 (N. Abstraction-Filtration Test In 1992. A Case for Effective Legal Protection of Computer Programs in India. Microsoft Corp. v.P. National Law School Of India University. Examining each of the parts for such things as incorporated ideas. 1992).

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. Mathew Bender. if it can be shown that the defendant had the opportunity to view. but is able to establish the reasonable opportunity to view.. Nimmer. This approach is 20 Even if the plaintiff is unable to prove actual viewing by the defendant. 1985. 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. in a private office or home outside of the presence of any witnesses available to the plaintiff. But this result is often reached through the Courts reasoning that the opportunity to view creates an inference of access. Vol. this (when combined with substantial similarity) is sufficient to permit the trier to conclude that copying has occurred. 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. which in turn creates an inference of 'copying'. In each case the burden should shift because the plaintiff often can no more prove actual physical possession than he/she can. ACCESS Some Courts have defined access as the actual viewing and knowledge of plaintiff's work by the person who composed defendant's work. or did not read it. This definition is submitted to be erroneous. this should be regarded as a showing of access for the purposes of shifting the burden to the defendant to establish independent creation. Just as it is virtually impossible to offer direct proof of copying.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. 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. New York. assuming such possession.. 16 . 3. if at all. prove the act of reading and the memory of such reading. Nimmer on Copyright. Melville B. For this reason it is clear that even if evidence is unavailable to prove the fact of actual viewing. Such viewing will normally have occurred. at 13-10. Such an approach tacitly if not expressly adopts the actual viewing definition of access.

that is. There must be a reasonable possibility of viewing plaintiff's work. Melville B. New York. does not cover any bare possibility in the sense that anything is possible. or that they arrived at their results independently. but did not avail himself/herself of the opportunity to view. but this conclusion is with regards the ultimate issue of copying. The trier of fact may conclude that the person who created defendant's work had. 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.. As with other rights of property recognized at common law. that they both copied from a common source. the primary exclusive rights may be asserted against even the defendant who honestly believes that he/she purchased the right to reproduce the work. Thus.the other possibilities being that he/she copied from the defendant. 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. Nimmer on Copyright. he/she does not have to show that the defendant knew that his/her copying constituted an infringement. 21 Nimmer.not a bare possibility. On the contrary. 1985. the opportunity to copy. 17 . Mathew Bender. Access may not be inferred through mere speculation or conjecture. Vol.consistent with what is perhaps the more prevailing definition of access. at 13-12. Reasonable opportunity as here used. On the other hand. 3.21 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.

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

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

3. at a time when he/she does not own the copyright.24 Sometimes access may be proved by mere circumstantial evidence. 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. he/she reproduces it in a second work. Mathew Bender. 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. Melville B. and subsequently. Thus. Vol. Therefore. 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. 1985. an idea that can be extended to the screen displays of a computer. 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. it may be inferred that the material was in fact received . at 13-17. from proof that a plaintiff mailed the allegedly infringed material to the defendant's principal office. Some concession in his/her favor seems called for.laid upon the feeling and artistic character of the plaintiff's work. 20 . New York. 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.. Suppose an author creates a 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. Nimmer on Copyright. rather than resorting to independent creation. in order to allow him/her to continue doing the kind of work at which he/she is proficient.

it may occur before. 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. that the defendant's conduct is not an infringement. at the time of. 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. expressly or impliedly. Where he/she both know. 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. either in the way of express knowledge or knowledge that these particular defendants must have inferred. This consent may be expressly given or it may be implied from the circumstances. yet he/she stands by 21 . no part of his/her activity. even the most recent is actionable. Conduct alone can create an implied license in some circumstances where the plaintiff represents.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. he/she will thereafter be estopped from asserting his/her right. The knowledge which has to be proved is actual not constructive. 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. or after the infringing act. Once a plaintiff fixes a defendant with notice of the facts relied on as constituting an infringement.

They are as follows: 1. 5. But Buckley LJ. at 237. 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. The real test. Calcutta. If all this can be proved. 25 (1880) 15 Ch D 96 at p. 3. Cited from Narayanan. Barber25 Justice Fry has set out five requisites to establish acquiescence. for the person having the right sought to be enforced. Law of Copyright and Industrial Designs. The defendant. 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. the possessor of the legal right must know of the plaintiff's mistaken belief of his/her rights. for the doctrine of acquiescence is founded upon conduct with a knowledge of the legal rights. 4. The plaintiff must have made a mistake as to his/her legal rights. In Willmott v. 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.without asserting his/her right. there is no need to show any element of delay. he/she will be taken to have acquiesced in the wrong. 26 (1978) 1 All ER 1223 at 131. 22 . He/she must have expended some money or must have done some act on the faith of his/her mistaken belief. 1995. Eastern Law House. I think must be whether upon the facts of the particular case. The defendant. the situation has become such that it would be dishonest or unconscionable. 2. 105. to continue to seek to enforce it". the possessor of the legal right. in Shaw v.

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

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

25 . are true. That if first publication of a work qualifies it for copyright. films and computer programs. the work was original and was first published where and when the plaintiff alleges. iii. copyright subsists and was owned at first publication by the person named as publisher.i. then ii. If this does not apply. 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. where the author is dead or unidentifiable when the action is brought. That. That a person named as author is the author of a work. there are presumptions that statements naming the copyright owner. or giving the date or place of first publication. As regards copyright in sound recordings.

usually to the first day on which there can be a hearing of the matter. by the defendant being ordered to keep an 26 .REMEDIES There are many instances where justice can only be done if the Court acts to prevent further damage to the plaintiff pending trial. They are normally granted for a short period. An interlocutory injunction will not. 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. In such a case. 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. it may be granted although the plaintiff does not fully prove his/her title to the right alleged to be infringement. immediate notice to be given to the defendant. where the defendant might suffer irreparable injury from an injunction restraining him/her from publishing. or although the quantity of the defendant’s work which constitutes the infringement has not been ascertained. or has only an equitable title. 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. pending the trial and the plaintiff can be properly protected. making it impossible to give the normal notice and that he/she has not delayed in applying for the injunction. however be granted. Interlocutory Injunctions It is often of importance for a plaintiff to obtain immediate protection from a threatened infringement of his/her copyright.

As part of such a claim. the claim is either for compensation for lost profits. and others v. London. K. v.Pandit. The defendant has the opportunity to submit written evidence in reply. Vol. at 610.). 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. if he/she wishes to contest the motion. 29 Based on the case decision in Anton Piller K. the claim is for the misappropriation. the plaintiff is entitled to show that the cheap or vulgar form of the defendant's piracy. as with patents. Halsbury's Laws of England. Ltd.M. Alternatively. or if there is any substantial doubt as to the plaintiff’s right to succeed. 27 . injured reputation and so lost him/her sales.account. nor will it normally be granted where a bona fide defense of fair dealing has been pleaded. see also E. Butterworths. 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. Anton Piller Orders29 The usual basis for claiming substantial damages for infringement relates to the commercial value of the work.28 The application for the interlocutory injunction is made to the court by notice of motion. 1974. Manufacturing Process Ltd.I.because the defendant's infringements have lost the plaintiff his/her own opportunities for sale. which is served on the defendant. Marylebone (ed.[1975] 1 All ER Ch D 418.because the plaintiff has lost the chance of licensing or selling his/her copyright to the defendant. 28 Lord Hailsham of St. 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. (1976) RPC 719.N. How far this will be assumed from the very fact of the defendant's piratical sales depends on the particular circumstances. 9.G.

first. for an order that the defendant permit him/her (with his/her solicitor) to inspect the defendant's premises and to seize. to seize the infringing material and secondly. video and other copyright piracy and the imitation of popular trade marks. for instance. An injunction against infringement may be part of the order. in breach of confidence cases. copy or photograph material relevant to the alleged infringement. keep infringing stock or infringing papers.Purpose and Need [The purpose of an Anton Piller order is that. Anton Piller Orders have been a response to growing concern over the current volume of sound recording. the Court of Appeal approved a procedure that is of major practical importance to some owners of intellectual property rights. about his/her sources of supply. 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. The plaintiff applies to the High Court in camera without any notice to the defendant. but they are equally available. In Anton Piller's case. trade mark or other rights. for instance. 28 . it enables the plaintiff to enter the premises. 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. or the destination of stock passing through his/her hands. in extreme cases where there is very clear and strong prima facie evidence of an infringement of copyright.] 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 defendant may be required to deliver up infringing goods. and even to give information.

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. of course. Intellectual Property: Patents. who is an officer of the Court.. London. 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. actual or potential to him/her is very serious. Shows that the damage. therefore open to him/her to refuse to comply with such an order. W. 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. the contempt will be dealt with accordingly. but at his/her peril either of further proceedings for contempt of Court. at 48. must attend. The plaintiff must also give a cross-undertaking in damages. There are certain safeguards which are said to distinguish this sort of order from a search warrant which are: 1. ii.but more important. 3rd edn. 3.Technicalities The form of the order makes it plain that the Court is not ordering or granting anything equivalent to a search warrant.R. It is. The plaintiff's solicitor. of course. Provides an extremely strong prima facie case of infringement. 2. Trademarks and Allied Rights.30 The order will be made if the plaintiff i. Copyrights. 1996. 29 .in which case. The Order is an order on the defendant in personam to permit inspection. iii. the refusal to comply may be the most damning evidence against the defendant at the subsequent trial. 30 Cornish. Sweet and Maxwell.

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

upon his/her undertaking to keep it in safe custody and produce it. can try an offence under the Act. if required.answer to a charge of inadequate disclosure that enough was shown to justify the making of the order. Moreover. Ordinarily however. Moreover such seizure could only be of infringing copies and did not extend to plates used for making infringing copies. wherever found and the copies so seized must be produced before a magistrate as soon as practicable. 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. No Court inferior to that of a Presidency Magistrate or a Magistrate of the First Class. that an infringement or an abetment of infringement of copyright in any work has been. it is the 31 . but should be returned after necessary information has been extracted from them. 1984. once he/she is on the record. they should be retained until trial. After the Act. and where infringing material has been seized it should be handed over to the defendant's solicitor. Search and Seizure Prior to the Copyright Amendment 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. Now Section 64 provides that where any police officer not below the rank of sub-inspector of police is satisfied. or is likely to be committed. 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. 1957]. if business records have been seized. the powers of the police have been widened. at the trial.

attracting heavy penalties might result. 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. Section 72. and even to exemplary damages. If the order was not justifiedwhether or not it is subsequently discharged. copyright. in proceedings for infringement of intellectual property rights31 or passing off. registered design. Since these answers would in many cases furnish evidence of criminal conduct. A joint author can also file a complaint.the defendant will be entitled to compensatory damages for the contumely or affront in the way the proceedings were used against him/her. for example the licensee who files a complaint. encompassing 'patents. The conduct of the criminal proceedings is governed by the Criminal Procedure Code. which requires answers on sources of supply or customers. 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 might be appropriate against a street trader. a defendant 31 This.owner of the copyright or any person who has an interest in the copyright. 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. By the Supreme Court Act 1981. Because the upshot was to offer a haven to those apparently most culpable. 32 . trademark. defendants at first sought to plead in response a privilege against self-incrimination. technical or commercial information or other intellectual property ': Section 73(5). as distinct from (say) a summary offence under the copyright or trade descriptions legislation. The defendant is protected only by the discretion on costs and the plaintiff's cross-undertaking in damages. Parliament proved willing to intervene.

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. not possible to use any statement or admission so procured in any equivalent criminal proceedings. by giving him/her full information by way of discovery and disclosing 33 . he/she came under a duty to assist one injured by those acts. It is however. The principle applied in such cases has been stated as "where a person. Interlocutory orders to furnish the names and addresses of persons responsible for supplying infringing copies to the defendant can be obtained in suitable cases. The Court may order such a person to disclose the names of the consignors or consignees responsible.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. 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. albeit innocently and without incurring any personal liability became involved in the tortious acts of others. than that he/she was a spectator or has some document relating to it in his/her possession. 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. It is not available against a person who has no other connection with the wrong. is shown (however unwittingly) to be facilitating the wrongful acts. Discovery will not be ordered against anyone who can give information as to the identity of the wrongdoer.

there have been orders directed to the seizure of specified valuables. particularly if they may otherwise be removed from the jurisdiction.] Discoveries. so also. infringement actions cannot be launched effectively unless the plaintiff can specify. These may relate to bank accounts and other financial assets. he/she will not be deprived of things needed for living and conducting legitimate trade. Accordingly. If he/she does not give them and does not comply with any order for further and 34 . Just as a defendant is permitted an allowance for living expenses out of financial assets that are subject to a Mareva order. 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.the identity of the wrongdoers. 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. particulars of at least one act of infringement. Equally. Mareva Injunction [More in general evolution in interlocutory procedure: the Mareva Injunction is directed. if anything might really be claimed. Orders are frequently made which contain both Anton Piller and Mareva terms. where the order relates to other assets. it mattered not that such involvement was the result of voluntary action or the consequences of the performance of a duty statutory or otherwise. not to the uncovering of assets belonging to the defendant which may be needed to satisfy judgement in the action. in which according to the evidence. the proceeds of infringement have been invested. Interrogatories. and for that purpose. in his/her statement of claims.

which on occasion may provide important evidence or admissions. but the defendant may fear that the inspection by him/her will reveal the defendant's own secrets. The plaintiff may need to discover what the defendant is doing. is sometimes acute. 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. and it may 35 . all involved. The Court has power to order inspection even against this sort of objection. 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. a defendant's stake is likely to be high. discovery of documents and the administration of interrogatories are steps.better particulars he/she will be unable to defend himself/herself on a motion to strike out pleadings or actions. Accordingly. But while it will not require first to be satisfied prima facie that the defendant is infringing. but possibly on condition that nothing is copied or taken away and that.a fear that. it may need to be shown that there are formidable grounds rather than a mere suspicion. are placed under obligations to respect confidence. the plaintiff will carry his/her case forward to the stage of pre-trial preparations. It may try to alleviate the defendant's anxieties by requiring an independent expert to make the inspection. in the race to get ahead. Provided that he/she can show enough to repel attacks on his/her pleadings. 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. then it may have to be done by the plaintiff and his/her advisers. As in other types of civil litigation. Beyond this there are special procedures for cases involving industrial techniques.

must normally be begun within six years. Such clandestine or covert dealings. but then allowed to stagnate. In fact. 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. which are more the norm than the exception in countries like India and China. may be struck out for want of prosecution. if the author were to make a confession. 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. with poor enforcement mechanisms contributing in no small measure to it. The same applies to actions based upon breach of contract. this will only be done if there is a real prejudice to the defendant. being tortious in character. But under current practice. which is commenced within the limitation period. costs the industry a good billion dollars every year. 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. This problem is especially rampant in all developing countries. yet they are indispensable tools for their day to day operations in a fast growing technological world. of the wrongful act. More importantly. as well as inordinate delay. the author is presently writing this research paper on a pirated copy of Microsoft Word! 36 .well become higher if proceedings against him/her are delayed until he/she has established commercial production and tied himself/herself to distribution arrangements. it has to do with a situation wherein people are unable to afford them. An action. Software Piracy: the norm or the exception. Infringement of copyright in software occupies the pride of place among all cases of copyright infringement.

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

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

The only question is whether the object code is subject to copyright39. Also see Apple Computer v. 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. 1240. Supra n. In order to find out whether there has been a violation of the source code. 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. 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. a process of "reverse engineering” is necessary. Piracy in software can occur at two levels:  At the object code level40. This means a better way of policing such violations must be evolved.34. As per Section 45 of the Indian Evidence Act. Franklin Computer Corp. all programmes expressed in codes is entitled to protection if it can perform a particular task or achieve a particular result. thus object code is covered.which is not that easy. 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. It is in such situations that expert intervention is actually necessary. 40 This is for those who require merely the executable program. The decompilation or disassembly of the object form is necessary. 714 F. and  At the source code level41. Besides if there is no protection to the object code there is no point in protecting the source code. 41 This is for competitors who seek to understand the structure and logic of the program.2d. The computer can reproduce an object code from a magnetic tape. Also. See. 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. as per the Indian Copyright Act. floppy disk or ROM in a printed form. The ROM contains electrical impulses that embody instructions that emanate from a written description. Object code is only a mechanical translation of the source programme into another language. there must be a manual comparison of the two works in the case of software such a comparison is possible. 39 . 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. Proving Piracy: Just as in the case of written works.

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

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

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

Ct.We hold that the Lotus menu hierarchy is an uncopyrightable method of operation. The author submits that a modified hybrid of trade secret. The Supreme Court granted certiorari to Lotus on an appeal from the First Circuit Court of Appeals decision. 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. at the same time. but the Supreme Court affirmed by default when it turned out that the Justices were equally divided on the issue. courts. 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.46 As courts became reluctant to protect non-literal elements of computer programs under copyright law. 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. 46 116 S. became more comfortable with granting patent protection to computer programs. We do not consider whether it could also be a system. or procedure. process. 804 (1996). patent and copyright law should be developed for the protection of computer software.

1996. is calculated on a basis other than the life of a natural person. The latter provides its own amendment procedures. Article 12 of the TRIP’s Agreement provides that whenever the term of protection of a work. “such term shall be no more than 50 years from the end of the calendar year of authorize publication”. As this procedure has not been followed. Trade Related Aspects of Intellectual Property Rights: A Concise Guide to the TRIPS Agreement. Michael. TRIP’s provides under Article 61 for criminal remedies against the infringement of intellectual property rights. other than a photographic work or a work of applied art. Members shall be free to provide for criminal procedures and penalties to be applied. the general term of protection is for the life of the author and 50 years.47 Under Article 7(1) of the Berne Convention. Consequently upon India signing the GATT and entering the global market economy.for the purposes of this Agreement. a number of changes have been made in The 47 Blakeney. 44 .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. or where authorized publication does not occur.1 of the TRIP’s agreement obliges members to comply with Articles 1 to 21 of the Berne Convention and the Appendix thereto. London. 50 years from the end of the calendar year of the making of the work. Article 9 is either ultra vires or should be read with the prefatory words.. Article 9. has tried to adopt the regime of copyright protection provided for in the Berne Convention. Sweet and Maxwell. at 45. In other words it purports to amend the Berne Convention. In addition..

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

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