You are on page 1of 24

[Type the company name]

Copyright protection and Computer Software

Piyush TIwari [982053]


Intellectual property rights is one of the major or challenging issue in todays world. My paper deals with one of the main part of intellectual property Copyright and Software protection. My paper is mainly divided into seven parts. First part contains about what is copyright and an introduction of copyright. Second part deals about history and growth of copyright in India. It contains the critical analysis of copyright at the time of East India company, first enactment of copyright act,1914 and after independence scenario of copyright laws in India. In next part of the paper contains about the need and importance of copyright laws and how software became the part of copyright laws. The paper contains the comparison of different countrys copyright and software protection laws. In further parts talks about the world and Indian initiative to protect the copyright and procedures taken by them for protecting copyright and software protection. Recent case examples are given of copyright infringement and the initiative taken for safeguard of copyright. In the last part of the paper it contains the international steps for safeguarding the copyright and software protection under it and conclusion of the whole paper.

Page | 2

Introduction to Copyright Law

Intellectual property is the first law of the creator or inventor. The law related to all creation is generated by the creation itself. A copyright is a set of exclusive rights granted by a state to the creator of an original work or their assignee for a limited period of time in exchange for public disclosure of the work. This includes the right to copy, distribute and adapt the work. In most jurisdictions copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission. Copyright owners can license or permanently transfer or assign their exclusive rights to others. Initially copyright law applied to only the copying of books. Over time other uses such as translations and derivative works were made subject to copyright. Copyright now covers a wide range of works, including maps, sheet
music, dramatic works, paintings, photographs, architectural drawings, sound recordings, motion pictures and computer programs.

History and Development of copyright Law in India

Modern copyright law developed in India gradually. We can divide the development of copyright law in three phases.

Phase 1 East India Company Statue

Copyright law entered India in 1847 through an enactment during the East India Company's regime. According to the 1847 enactment, the term of copyright was for the lifetime of the author plus seven years post-mortem. But in no case could the total term of copyright exceed a period of forty-two years. The government could grant a compulsory licence to publish a book if the owner of copyright, upon the death of the author, refused to allow its publication. The act of infringement comprised in a persons unauthorized printing of a copyright work for (or as a part
Page | 3

of attempt of) "sale hire, or exportation", or "for selling, publishing or exposing to sale or hire". Suit or action for infringement was to be instituted in the "highest local court exercising original civil jurisdiction." The Act provided specifically that under a contract of service copyright in "any encyclopaedia, review, magazine, periodical work or work published in a series of books or parts" shall vest in the "proprietor, projector, publisher or conductor." Infringing copies were deemed to be copies of the proprietor of copyrighted work. Importantly, unlike today, copyright in a work was not automatic. Registration of copyright with the Home Office was mandatory for the enforcement of rights under the Act. However, the Act also specifically reserved the subsistence of copyright in the author, and his right to sue for its infringement to the extent available in law other than the 1847 Act. As we shall see, this reservation of other copyrighttype laws was done away with in later legislations.i At the time of its introduction in India, copyright law had already been under development in Britain for over a century and the provisions of the 1847 enactment reflected the learnings from deliberations during this period. Thus, in its very first avatar, copyright had arrived in India as a modern law that was both abstract (encompassing all works of literature and art) and forward looking (in the way that it sought to accommodate both existing and new forms of subject matter). As a result, many of the philosophical debates over the nature of literary property that had animated the initial years of copyright development in Britain were conspicuous by their their absence in the sub-continent. On the precise manner that the 1847 enactment operated, very little is known. However this enactment created the conceptual milieu that eased the passage of succeeding legislations.

Phase2: Copyright Act, 1914

In 1914, the then Indian legislature enacted a new Copyright Act which merely extended most portions of the United Kingdom Copyright Act of 1911 to India. It did, however, make a few minor modifications. Baxi identifies two of the major changes:

First, it introduced criminal sanctions for copyright infringement (sections 7 to 12). Second, it modified the scope of the term of copyright; under section 4 the "sole right" of the author to
Page | 4

"produce, reproduce, perform or publish a translation of the work shall subsist only for a period of ten years from the date of the first publication of the work." The author, however, retained her "sole rights" if within the period of ten years she published or authorised publication of her work a translation in any language in respect of that language.

Vesting violations or property rights with criminal sanctions can probably be understood as a part of general colonial legal and political policies which sought to protect the right to property over rights to personal freedom.

The modification of term of copyright for translation rights however cannot be explained by any reference to dominant characteristics of colonial policy. The language of the Act might suggest a laudable policy objective of promoting wider diffusion of Indian works in one language into other Indian languages, a consideration which might have appeared distinctive to India as compared with UK. There might also have been the desire to promote the growth of publication industry in numerous Indian languages. But whatever be the intention, the impact was disadvantageous to the authors and a boon to publishers. This can be seen from the following observations in a note of dissent when the continuation of the same provision was urged by the Joint Select Committee of the Indian Parliament in 1956 (a recommendation which did not ultimately prevail). R.D. Sinha "Dinker" argued that this provision has "worked to the utter detriment of the authors." Referring to the plight of two distinguished Bengali authors he observed:

"Most of the novels by Sarat Chandra Chatterjee were translated in Hindi, while the author was yet alive. The author's novels, in translation sold thousand of copies, but the author did not get a pie out of the sale-proceeds Something like this happened in the case of Gurudeva (Tagore). Publishers in Hindi and other languages were making good money out of the translations of his works, but the poet, revered by the nation, was in his extremely old age touring the country for money to support the Shanti-Niketan."

The 1914 Act was continued with minor adaptations and modifications till the 1957 Act was brought into force on 24 January 1958 very shortly after the attainment of independenceii.
Page | 5

This phase of copyright law generated some important classical decisions on the law of copyright. Simultaneously, however, it also sowed the seeds of a trend that Baxi terms as a juristic dependencia the tendency of Indian judicial decisions as well as forensic styles relying excessively on United Kingdom (UK) precedents. On the impact of this trend, he notes: The heavy hand of UK law still lies on Indian creative works despite the reformulation of the law in 1957. Judicial interpretation is perhaps most heavily influenced by UK precedents in the area of copyright law than in any other. The slavish imitation of foreign precedents has occasionally led intrepid Indian justices to remind the Bar and the Bench that the 1957 Act is made by "a sovereign legislature of this land" and its interpretation "must be based upon the object of the legislation and the language used" and that the "historical roots" of the Indian law in the UK law of copyright should have no higher function than that of providing an "aid to thinking."

Phase 3 Post Independence

Independent India accorded high priority to formulation of her own law on copyright. The Indian Copyright Act 1957 (the 1957 Act) repealed the Indian Copyright Act 1914 (the 1914 Act) which had virtually incorporated the whole of the Imperial Copyright Act 1911. The revision of the 1914 Act occurred within a mere seven years of Independence.

A number of factors, according to Baxi, impelled this early revision. First, it was clear that continued existence of the 1911 Act through the 1914 Act was unbecoming to "the changed constitutional status of India." Second, the 1914 Act did not accord with the 1948 Brussels Act of the Berne Convention and the 1952 Universal Copyright Convention chiefly in the much longer terms that the Berne Convention mandated. Third, new "and advanced method of communications" rendered modernisation of the law necessary. Fourth, the need for an "independent self-contained law" was also felt in the light of the experience of the "working" of the 1911 Act, and more important, of "the growing public consciousness of the rights and obligations of the authors."

Page | 6

To aid them in this task of indigenization, the Indian legislators appointed a Select Committee to propose a model Copyright Act. The Committee appears to have consulted the report of the English Copyright Committee, the models provided by the relevant international conventions; they received evidence from twelve organisations, including the International Confederation of Societies of Authors and Composers (Paris), the Performing Right Society (London), British Copyright Council and the Columbia Gramophone Company Ltd. The Report of the Select Committee, says Baxi appears to be among the briefest in the annals of the Indian Parliament but, in many senses, it made major innovations which were ultimately enacted. One of the key legacies of the Committees Report, for instance, was the abolition of registration as a precondition for infringement proceedings. Another significant area where the new Indian Copyright Act parted ways from the UK Act was in its omission of sections contained in the latter providing for gratuitous supply of books to designated libraries. iii

In his evaluation of the new Copyright Act, Baxi notes: it was as not in any sense a replication of the English legislative proposals. In this sense, the 1957 Act was the first truly Indian legislation after well over two centuries of the subjection to the 'imperial' law. The Act was not sufficiently far-sighted; it, for example, does not protect the right of the performers adequately. In many respects (as demonstrated later) it is drafted in ways which make it meaningful only to judges and lawyers and sometimes not even to them. But the fact remains that the country had its own law of copyright for the first time in contemporary history; and, for weal or woe, it represented the law-policy choices made by its independent legislature.

Three sets of ancillary amendments succeeded the 1957 Act. In 1983, several new sections were introduced into the act. Sections 32A and 32B provided for 'compulsory licences' for publication of copyrighted foreign works in any Indian language for the purposes of systematic instructional activities at a "low price" with the permission of the Copyright Board on certain conditions. The other crucial change was the insertion of section 19A, relating to the conferral of power in the Copyright Board, upon a due complaint to it, to order revocation of the assigned copyright where
Page | 7

either the terms are 'harsh' or where the publication of the work is unduly delayed. In addition the 1983 Amendment provides for power in the Copyright Board to publish unpublished Indian works, and for the protection of 'oral works.' The amendment made it mandatory for the copyright office to publish details of all copyright registrations in the Gazettte of India. Lastly, the disallowed the importation of an infringing copy of a copyright work for private and domestic use which had been permissible prior to the amendment.

Subsequently, after a gap of a decade, sweeping changes were introduced through an amendment in 1994. These included: 1) The increase of the term of copyright from fifty years post mortem to sixty years; 2) The extension of copyright to new types of works including computer programmes and performances; 3) The redefinition of communication to the public so that a work is communicated regardless of whether any member of the public actually sees, hears or otherwise enjoys the work. 4) An overhaul of the vocabulary employed in the Act, for instance substituting broadcast for radio diffusion, work of architecture in the place of architectural work, sound recording in the place of record 5) Clarification of the ownership of copyrights over public speeches and works by public undertakings.

In 1999, certain sections relating to international broadcasting rights were inserted into the Act, along with stipulations enhancing the fair dealing rights of users of computer programmes and software - these permitted the doing of any act necessary to obtain information essential for the interoperability of computer programmes, and also permitting the making of personal copies and adaptations of computer programmes if they were legally obtained.

Thus the history of the Indian Copyright act is characterised by a tendency to expand commodification of culture while at the same time constricting access to it.

Page | 8

Need for copyright Protection

A copyright is a form of intellectual property law that provides protection for original works of authorship including literary, dramatic, musical, and artistic works. Copyrights protect poems, novels, movies, songs, computer software, and architecture. Copyright protection is available to both published and unpublished works. Copyright protection does not protect the same things as a patent or trademark would. Copyright protection does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. Types of Works Protected by Copyrightiv Copyright law protects "works of authorship." The Copyright Act states that works of authorship include the following types of works:

Literary works. Novels, nonfiction prose, poetry, newspaper articles and newspapers, magazine articles and magazines, computer software, software documentation and manuals, training manuals, manuals, catalogs, brochures, ads (text), and compilations such as business directories

Musical works. Songs, advertising jingles, and instrumentals. Dramatic works. Plays, operas, and skits. Pantomimes and choreographic works. Ballets, modern dance, jazz dance, and mime works. Pictorial, graphic, and sculptural works. Photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art.

Motion pictures and other audiovisual works. Movies, documentaries, travelogues, training films and videos, television shows, television ads, and interactive multimedia works.

Sound recordings. Recordings of music, sounds, or words. Architectural works. Building designs, whether in the form of architectural plans, drawings, or the constructed building itself. Standards To receive copyright protection, a work must be "original" and must be "fixed" in a tangible medium of expression. Certain types of works are not copyrightable. Originality

Page | 9

The originality requirement is not stringent: A work is original in the copyright sense if it owes its origin to the author and was not copied from some preexisting work. A work can be original without being novel or unique.

A copyright owner has five exclusive rights in the copyrighted work: v

1. Reproduction Right. The reproduction right is the right to copy, duplicate, transcribe, or imitate the work in fixed form. 2. Modification Right. The modification right (also known as the derivative works right) is the right to modify the work to create a new work. A new work that is based on a preexisting work is known as a "derivative work." 3. Distribution Right. The distribution right is the right to distribute copies of the work to the public by sale, rental, lease, or lending. 4. Public Performance Right. The public performance right is the right to recite, play, dance, act, or show the work at public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images in sequence is considered "performance." 5. Public Display Right. The public display right is the right to show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images out of sequence is considered "display."


Anyone who violates any of the exclusive rights of a copyright owner is an infringer. A copyright owner can recover actual or, in some cases, statutory damages from an infringer. The courts have the power to issue injunctions (orders) to prevent or restrain copyright infringement and to order the impoundment and destruction of infringing copies.
Page | 10


The copyright owner's exclusive rights are subject to a number of exceptions and limitations that give others the right to make limited use of a copyrighted work. Major exceptions and limitations are outlined in this

Ideas Copyright protects only against the unauthorized taking of a protected work's "expression." It does not extend to the work's ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. Facts A work's facts are not protected by copyright, even if the author spent large amounts of time, effort, and money discovering those facts. Copyright protects originality, not effort or "sweat of the brow." Independent Creation A copyright owner has no recourse against another person who, working independently, creates an exact duplicate of the copyrighted work. The independent creation of a similar work or even an exact duplicate does not violate any of the copyright owner's exclusive rights. Fair Use The "fair use" of a copyrighted work, including use for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. Copyright owners are, by law, deemed to consent to fair use of their works by others. Fair use is determined by these balancing factor: 1. The purpose and character of the use. 2. The nature of the copyrighted work. 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. 4. The effect of the use on the potential market for, or value of, the copyrighted work.

Software Protection under copyright Law

There is a digital divide between the developed countries and the developing world. In the knowledge-based global economy, computer technologies are an essential requirement for accessing and using information, accelerating technology transfer and boosting the growth of productivity. At the same time, computer software products are perhaps the most heavily
Page | 11

protected of all forms of knowledge-based products. Under the TRIPS Agreement, computer programs non qualify for copyright protection just as any other literary work, as well as for other forms of IP protection, including by patents in some nations, such as the US. Developing countries, of course, have a range of requirements for computer software applications in their industries, hospitals, schools and government offices. But most commonly, they need affordable access to off-the-shelf business software packages, such as word processing, spreadsheet, e-mail and Internet browsing products. Companies in Europe and North America, with Microsoft being the major player, dominate the global market for these products. The software industries of developing countries, even in India, are mostly absent from the off-the-shelf, packaged computer programs sector.20 Copyright matters most in the computer software industry to the off-the-shelf business applications sector. Unlike bespoke software applications, these products have a mass market and can be easily copied. Copyright protection enables companies to prevent copying, limit competition and charge monopoly prices for these products. In developing countries, this presents two main problems. First, as there is currently widespread copying together with low local purchasing power in developing countries, there is a concern that stronger protection and enforcement could mean a more limited diffusion of such technologies. This may be a particular risk because the network effects of business applications tend to re-enforce the dominance of existing software producers. Examining the evidence, however, we conclude that this problem is not insurmountable for developing countries, if the right steps are taken. For example, governments and donor organizations could review their software procurement policies with a view to giving greater consideration to low cost business software products, including generic and opensource products that are widely available. The second problem is that where the source code of software is also protected, this may make it harder to adapt the products for local needs. It may also restrain competition in development of inter-operating applications, through follow-on innovation by reverse engineering. Under TRIPS, developing countries are permitted the flexibility to allow reverse engineering of software, so this problem may be avoided if national copyright laws are drafted appropriately. As another practical measure, more widespread use of the various open source software22 products, where source code is made available unlike proprietary software, may be considered.23 Alternatively, some in industry argue that with stronger copyright enforcement, closed source proprietary

Page | 12

developers may be more willing to make source code available to software developers in developing countries.vii It is clearly beyond our mandate to recommend what kind of policies developing countries should follow for procurement of computer software. For instance, whilst low cost or open source software may a priori offer cost and other advantages over proprietary software, many factors besides software license fees affect the total cost of an IT system such as customizing the system to the users specific needs, as well as servicing, and maintaining the system. That said, given the considerable needs which developing countries have for information and communication technologies and the limited funds which are available, it would seem sensible that governments and donors should certainly consider supporting programs to raise awareness about low cost options, including open source software, in developing countries. In present time most countries have protected computer software and programs under copyright.

(1) India:
In India, the Intellectual Property Rights (IPR) of computer software is covered under the Copyright Law. Accordingly, the copyright of computer software is protected under the provisions of Indian Copyright Act 1957. Major changes to Indian Copyright Law were introduced in 1994 and came into effect from 10 May 1995. These changes or amendments made the Indian Copyright law one of the toughest in the world. The amendments to the Copyright Act introduced in June 1994 were, in themselves, a landmark in the India's copyright arena. For the first time in India, the Copyright Law clearly explained: The rights of a copyright holder Position on rentals of software The rights of the user to make backup copies Since most software is easy to duplicate, and the copy is usually as good as original, the Copyright Act was needed. Some of the key aspects of the law are:viii 1. According to Section 14 of this Act, it is illegal to make or distribute copies of copyrighted software without proper or specific authorization. 2. The violator can be tried under both civil and criminal law. 3. A civil and criminal action may be instituted for injunction, actual damages (including violator's profits) or statutory damages per infringement etc.
Page | 13

4. Heavy punishment and fines for infringement of software copyright. 5. Section 63 B stipulates a minimum jail term of 7 days, which can be extended up to 3 years. Section 2(ffb) provides that: "Computer" includes any electronic or similar device having information processing capabilities. Section 2(ffc) defines: "Computer program" means set of instructions expressed in words, codes, schemes or in any other form, including a machine- readable medium, capable of causing a computer to perform a particular task or achieve a particular result. Section 2(o) provides that: "Literary work" includes computer programs, tables and compilations including computer database.

(2) Australia:
Computer programs have been protected as literary works in Australian copyright law since 1984. The Digital Agenda amendments introduced a new definition, based recommendations by the Copyright Law Review Committee (CLRC) in its 1995 report Computer Software Protection: a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.30 Australian Copyright Act, 1968 defines a computer program as an expression, in any language, code or notion, of a set of instructions intended, either directly.

(3) United States of America:

In the United States of America the Copyright Act of 1976 did not expressly list computer programmes as works of authorship. In 1980, the Act was amended by adding a definition of computer programme. It also laid down exceptions to the normal prescriptions against. The methods and algorithms in a program are not protected. U.S. copyright protection for computer programs extends to non literal elements including the structure, sequence and organization of a program, and to its graphical user interface. Together these elements are called look and feel.
Page | 14

Most foreign jurisdictions do not yet recognize protection of these non literal elements. Almost every country has protected computer software and program as a literary work in its Copyright Law. Thus, for copyright to subsist in computer programs, the element of originality and other conditions must be fulfilled as in case of other forms of literary works.32It is a debatable question that what constitutes "originality" in respect of computer programs. The German Copyright Law has dealt with the issue and has endeavored to protect work which is the personal intellectual creation of the author under copyright.33 The scope of these sections has been delineated by the courts. In Apple Computer, Inc V. Franklin Computer Corp.,34 it was held that Copyright Act extends to operating programmes as well as application programmes whether fixed in source code or object code or embodied in read only memory(ROM). However the court in Whelan Associates, Inc. V. Jaslow Dental Laboratory, Inc. created a relatively broad definition for copyrightable subject of software: everything that is not necessary to the computer programmes purpose or function, including its structure, sequence and organization. In 1992, the Second Circuit Federal Court of Appeals decided Computer Associates Intl V. Altai, Inc.36, which specifically rejected the simplistic test regarding the scope of copyright protection formulated in Whelan. In Computer Associates, the court developed a three-part test for determining whether software is infringed under the copyright laws. The test, which has come to be known as the abstraction/filtration/ comparison test.

(4)United Kingdom:
In United Kingdom, The protection of the computer program has been less certain and before 1985, it was unclear whether computer programs were protected by copyright. One view was that listings of source code programs were protected as literary works by analogy with codebooks or because they resembled written English to some extent37Court has also viewed that computer programs are protected under copyright. For example, in Sega Enterprises Ltd. v. Richards38, which concerned alleged copies of the computer game 'FROGGER' the trial judge was of the opinion that the source code program was protected by copyright and the object code program was protected indirectly as an adaptation of the source code version.

Page | 15

Indian Initiative for Protecting Copyright ix

The Indian government has initiated various steps towards Intellectual Properties Rights Protection. Indian enforcement agencies are working effectively and there is a decline in the levels of piracy in India. In addition to intensifying raids against copyright violators, the Government has taken a Intellectual property protection in India number of measures to strengthen the enforcement of copyright law. A summary of these measures is given below: 1. The Government has brought out A Handbook of Copyright Law to create awareness of copyright laws amongst the stakeholders, enforcement agencies, professional users like the scientific and academic communities and members of the public. Copies of the Handbook have been circulated free-of-cost to the state and central government officials, police personnel and to participants in various seminars and workshops on IPR. 2. National Police Academy, Hyderabad and National Academy of Customs, Excise and Narcotics conducted several training programs on copyright laws for the police and customs officers. Modules on copyright infringement have been included in their regular training programs. 3. The Department of Education, Ministry of Human Resource Development, Government of India has initiated several measures in the past for strengthening the enforcement of copyrights that include constitution of a Copyright Enforcement Advisory Council (CEAC), creation of separate cells in state police headquarters, encouraging setting up of collective administration societies and organization of seminars and workshops to create greater awareness of copyright laws among the enforcement personnel and the general public. 4. Special cells for copyright enforcement have so far been set up in 23 States and Union Territories, i.e. Andhra Pradesh, Assam, Andaman & Nicobar Islands, Chandigarh, Dadra & Nagar Haveli, Daman & Diu, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Pondicherry, Punjab, Sikkim, Tamil Nadu, Tripura and West Bengal.

Page | 16

5. The Government also initiates a number of seminars/workshops on copyright issues. The participants in these seminars include enforcement personnel as well as representatives of industry organizations. As a consequence of the number of measures initiated by the government, there has been more activity in the enforcement of copyright laws in the country. Over the last few years, the number of cases registered has gone up consistently.


Bangalore Aug10, 2003. Banashankari police arrested three software engineers for illegally copying software from a company they were working for. The accused enginners, who were working with the Ishoni Networks India Private Limited, had started a new company called Ample Wave Communication Network in Koramangala. They had illegally copied code of the companys software and were using at their company, police said. Ishoni Director Antonio Mario Alvares had lodged the complaint with Banashankari police. Police have seized four computers, four CPUs, four keyboards, one server and one laptop from the accused. (Source: DH News Service, Bangalore) New Delhi Aug28, 2002. Central Bureau of Investigation officials in New Delhi nabbed Shekhar Verma, a former employee of Mumbai-based Geometric Software Solutions Company and a computer engineer from the Indian Institute of Technology, Kharagpur. It turned out that Verma was accused of stealing $60 million worth of source code of a software product of Geometric Software's US-based client, SolidWorks, and trying to sell them to other companies for a fortune. The American firm has the exclusive rights over the software. (Source

Calcutta, 7 April 2000: The Enforcement Branch, Calcutta police with the assistance from Nasscom and BSA, seized pirated software worth of Rs. 2.61 crore (US$ 6,08,000) from companies while conducting raids in the city. 4 persons, including owners, partners and senior level employees of the companies, were arrested for this offence. The police recovered around 636 CDs, and 2 computers loaded with pirated software. Hyderabad, March 2000: Hyderabad Police, with assistance from Nasscom and BSA, seized pirated software worth of Rs. 75,16,400 (US$ 174,800) from 7 companies at a conducted raid. 13
Page | 17

people, including senior level employees of the companies, were arrested in this regard. The Police recovered around 293 CDs, 5 hard disks and 7 computers loaded with pirated software. The estimated value of the pirated software was worth Rs.77 lakh. Chennai, February 2000: Pirated software worth Rs.1.11 crore (US$ 253,200) was seized by the Chennai police at a raid conducted at the premises of four outlets. A total of 6 employees were arrested which included the Managing Director of one outlet and proprietors of each of the outlets.

New Delhi, 1 December 2000: Nasscom and BSA launched a new anti-piracy initiative - The Reward Programme to make India's business community take note of the dangers of software piracy. The reward offered, an amount up to Rs. 50,000 is for information leading to successful legal action against companies using unlicensed software. The reward program was aimed to encourage people to support the fight against piracy and to report software piracy to the NASSCOM-BSA Anti-Piracy Software Hotline on 1600 334455 to help Nasscom and the BSA remedy the illegal activity.


This is the first international Treaty to explicitly include computer programs within the illustrative list of copyrighted works. TRIPS sets forth three different forms of protection for software: copyright, patent and trade secret regime. TRIPS includes a specific provision in Article 10 that expressly requires member states to protect software, whether in source or object code, as literary works under the Berne Convention. However, the member countries have a right to provide more extensive protection of intellectual property rights within their national legal systems.

Article 27.1 recognizes patent protection for software related invention for the member states so long as the invention satisfies the other requirements (6) for patentability which are country specific. Therefore, software may be granted patent protection in a particular country if it fulfils the specific conditions set forth under the laws of that country.
Page | 18

Article 39 of TRIPS provides an alternative to copyright protection. It talks about protection for undisclosed information and offers a trade secret regime for software protection. Trade secret regime is applicable for the protection of trade secrets which may include software. A particular software may contain lot of valuable and confidential information about a company which forms its trade secret. Civil and criminal actions are provided for in most legislation against the unauthorized disclosure or use of confidential information. In this case, there is no exclusive right, but an indirect type of protection based on a factual characteristic of the information (its secret nature) and its business value. Unlike patents, trade secrets are protected as long as the information is kept secret.

Thus, TRIPS does not preclude additional forms of protection for computer programs and a member can offer patent, copyright and trade secret protection for computer programs. Keeping in mind the higher standards of creativity required by patent law the software developer can choose any form of protection which is most desirable to him. As the source code is comprehensible only by a trained programmer and not by normal persons, the proprietors generally protect the source code under the trade secret regime and the object code is protected as a copyright.

Reverse engineering (7) is one practice which is very common to software. There has been a debate as to whether reverse engineering amounts to infringement. TRIPS allows reverse engineering of computer programs only by honest avenues. Wholesale copying of computer programs is prohibited under TRIPS. Copying with modifications here and there is permitted and copying amounting to fair use is also permitted under the copyright laws of many countries. Consequently, the practice of re-implementing functional components of a protected program in clones is not prohibited. It is pertinent to mention here that programs that are independently coded and deliver the same functional performance or behaviour as the originators own software are not said to infringe the latters rights in his software as this will amount to fair use. This encourages competition and innovation by firms in all countries.

Page | 19

The Berne Convention does not explicitly mention computer programs in its illustrative list of copyright works. However, as per TRIPS, member states should recognize computer programs (software) as literary works.

Article 2 (7) of the Berne Convention makes the protection of works of applied art dependant on domestic legislation i.e. the extent to which protection may be granted and the conditions under which such works will be protected is dependant on the statute of the particular country where the work originated. Works enumerated in Article 2 of the Berne Convention are mere illustrations of the kinds of works to which copyright might extend. These illustrations are not exhaustive. Therefore, works such as computer programs that exhibit utilitarian characteristics and also contain expressive elements can be brought under the ambit of work of applied art. However, Article 7 (4) of the Berne Convention exempts, inter alia, the works of applied art from the general term of protection and sets up a minimum term of only 25 years from the making of the work. As article 2 (7) makes the protection of works of applied art dependant on domestic legislations, the term of protection may be applicable accordingly with respect to different countries.xii


Under the UCCs national treatment provisions, software created by a U.S. author or first published in the US is protected in other UCC member countries to the extent that the member countrys copyright laws protect software. The UCC provides that any member country that requires, as a condition of copyright protection, compliance with formalities (such as registration, deposit or notice) must treat such formalities as satisfied if all published copies of a work bear the symbol , the name of the copyright proprietor and the year of first publication. This provision applies, however, only to works that (i) were first published outside the country requiring the observance of the formalities, and (ii) were not authored by one of that countrys nationals. In contrast to Berne Convention,
Page | 20

formalities such as registration are permitted under the UCC in order to bring an infringement suit.

India being a member to the UCC, authors of software in US will get protection in India also as per the terms and conditions laid down in the Indian Copyright law.


In 1996, two copyright treaties were negotiated under the auspices of WIPO. These treaties are: WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The WCT of 1996 is a special agreement to the Berne Convention and requires compliance with Berne Convention. This treaty makes explicit that computer programs are protected as literary works under Berne Convention. It also states that compilations of data for which the selection or arrangement of the contents are sufficiently original are protected as compilations. Software makers are granted a right to control rentals of computer programs. It requires treaty nations to provide adequate and effective protection against the circumvention of technical measures that restrict the ability of others to exercise the rights owned by the copyright owner.

Among the countries where subject matter protection exists for software, there are substantial differences in the laws and regulations governing protection. For example, the author of a U.S. origin work who desires to file suit for copyright infringement in the US must first register the work with the U.S. Copyright Office. This is not the case with most other countries. In some countries, registration provides certain evidentiary benefits. In Japan, for example, the legal effect of one type of optional registration is to create a rebuttable presumption that the program was created on the date declared in the application, but a program must be registered within six months of its creation. In Venezuela, unless a U.S. author has already registered its software in the U.S. Copyright Office, when the author seeks to register its copyright in Venezuela (which one might do to prove originality for purposes of possible litigation in Venezuela), the author must also file assignments from each person who worked on the software.

Page | 21

5. European Community Directive on the Legal Protection of Computer Programs (EC Software Directive (ESD))
In 1991, Article 1.1 of the ESD required member countries to extend copyright protection to computer programs. In the midst of many restrictions imposed on the use of software by another except the owner, ESD has introduced relaxation in these restrictions concerning mainly reverse engineering. Article 6 of the ESD conditions reverse engineering for compatibility purposes on the fact that the information necessary to accomplish compatibility must not have been previously readily available and it should be confined to the aspects of the program related to the need for compatibility. There is no specific exception for research, and the limited scope of reverse engineering permitted by the terms of the ESD is not to be construed in a manner that would unreasonably interfere with the owners normal exploitation of the computer program. Reverse engineering for purposes of creating competing products is thus prohibited under the ESD. xiii

Protection of Intellectual Properties is a very critical issue or challenge in todays world. Copyright is one of the important intellectual Property right which much be protected. There are many benefits from copyright and if it will be not protected then it will demotivate the author or creators to create anything new. There have been many cases where companies have lost their position in the market due to the loss of intellectual property. Computer software gets their protection under copyright law. Pirated software affects software developers, retail store owners and also all software users. Furthermore, the illegal duplication and distribution of software has a significant impact on the economy. This calls for its stronger legal protection. With the growing concept of software technology parks and the importance of software in every business, more and more companies want protection under the legal regime to obviate software piracy. The availability of injunctive relief and criminal remedies are particularly vital to the software industry. Software developers often rely on civil ex parte injunctive procedures to identify infringers. However, civil procedures in many developing nations are time-consuming, costPage | 22

prohibitive, and largely ineffective against professional criminals. Therefore, software developers are often forced to rely on criminal prosecutions by public authorities to deter rampant piracy of their products. International initiatives are taken for protection of these Intellectual Property. In my project I have shown the importance of copyright and software protection and how world law protecting them. Copyright gained its importance in world and countries is taking the issue of intellectual property seriously and initiatives are taken for protection of copyright.

Page | 23 i.d iii I.D iv V.K Ahuja,intellectual property law v P Narayana, Intellectual Property law
ii vi

V Ahuja. Intellectual Property law

vii Indian copyright act ix x

viii xi


Page | 24