May 15, 2023

Protection of Computer Program under Copyright Act

This article has been written by Ms Panya Sethi, a third year BBA.LLB student of Symbiosis Law School, Noida.

INTRODUCTION

The Copyright Act of 1957 copyright law in India is governed by Indian law. The major purposes of copyright law are (i) to protect the rights of writers, composers, artists, and designers, and (ii) to guarantee that others are free to build upon the ideas and information presented in a work without having to pay royalties to the original creators. Works of literature, theater, music, creativity, cinema, and sound recordings are all protected under the Copyright Act of 1957’s Section 13. Works of literature and computer code alike are among the types of creative works protected under the Act.

If it is not a computer program but has a technological impact on the software, it does not qualify for copyright protection. Computer programs that have a tangible technological impact are protected under the Indian Patent Act of 1970. About 200 software patents were issued in India between 1999 and September 2010, per data from the Centre for Interest and Society (CIS).

To qualify for copyright protection, computer software must be original, and the author must have put in a substantial amount of time and effort to make it so. However, the amount of security necessary may be beyond the capabilities of a software whose only function is to construct algorithms or multiplication tables. If the book has been disseminated outside of India, the author must either be a resident of India at the time of distribution or must have been a resident of India at the time of his death, and the work must be original and unaltered. 

“The following steps are involved in Computer Programs:

  • Generating the conceptual preliminary material;
  • Generating the source-code (script the program in particular programming language);
  • Generating the object-code (interpreting the program from source-code in a language logical to the appliance);
  • Generating the user manuals.”

SOURCE CODE AND OBJECT CODE

While intellectual property rights are created with the creation of the source code, they are often reserved for the object code, which provides the computer with the executable instructions needed to carry out the program. Millions upon millions of copies of a program may be disseminated as object code, but the source code is usually never made public and so stays protected as a trade secret.

A programmer might use the information provided in the source code to either create or better understand the software.

Source code and object code are two separate things, however it is helpful to think of them as merely various manifestations of the same copyrighted work. From a registration standpoint, the Copyright Office treats source code and object code as interchangeable.

To the extent that a copyright was created when the first lines of source code were written by the programmer, a new copyright is created whenever an addition or change is made to the source code that is sufficiently original. This means that a computer program is often covered by many copies of the copyright from the time it is initially created until the time it is last modified.

AUTHOR’S RIGHT

The author of a copyrighted work is entitled to economic and moral rights for his or her efforts under the terms of sections 14 and 57 of the Copyright Act. This includes the possibility of having the work used in any medium, including digital ones.

The owner of copyrights for PC programming/programs has the right to reproduce the work, issue copies of the work to the general public, and make any cinematic movies, sound recordings, or transformations of the work, with the exception of the right to “sell or give on business rental or make available for purchase or for business rental any duplicate of the program/programs.” Copyright Act of 1957, Section 14(b), deals with this same topic.

Rentals for business purposes are exempt if the computer program is not the primary commodity being rented. In 1999, the Act was amended to include a section addressing rental rights, which is consistent with Article 11 of the TRIPS Agreement. In contrast to the Copyright Act of 1957, which does provide the preservation of moral rights, the TRIPS Agreement does not do so.

COMPUTER PROGRAMS- LITERARY WORK

A computer program, table, or compilation, such as a computer database, falls within the definition of “literary work” under Section 2 (o) of the Copyright Act, 1957. Putting the code onto a physical medium like a ROM, hard drive, or any other digital storage device is all that is required to secure the developer’s copyright on the software. This action makes the program immediately copyright-protectable.

The types of works for which copyright protections continue to apply are listed in Section 13. This includes works of original literature. A work’s original copyright holder is the work’s author. However, in the case of a company and a representative, in the event that a work is created via work under an agreement of administration or apprenticeship, the company will be the underlying owner of the copyright in the aforementioned, unless an agreement contrary to the rule exists.4. The copyright requirements of the legislation also apply to computer programs and software.

INTERNATIONAL BODIES FOR SOFTWARE PROTECTION

  • TRIPs
  • Berne Convention
  • The Universal Copyright Convention (UCC) Geneva, Switzerland, 1952
  • World Intellectual Property Organization Copyright Treaty (WCT) and WPPT, 1996
  • European Community Directive on the Legal Protection of Computer Programs (ECD)”

SOFTWARE CONTRACTS

The Indian Contract Act applies the common law concept to all types of contracts, including software development agreements. 5. It is possible that the contract will be an assignment or license rather than a sale. If the program qualifies as a “product,” the terms of the sale must be negotiated and finalized in accordance with the Sale of Goods Act of 1930. “Good” is defined as “any sort of moveable property other than actionable claims and money” under Article 2(7) of the 1930 Act for the Sale of Goods. Incorporates Stocks, shares, growing crops, and grass. Everything that can be physically transported is considered commodities here.

In Telstra v Phone Directories Case,  It was argued that the petitioners’ computer-generated writing qualified as an original work of literature. There was some debate about whether or not a computer-generated output may be considered really original.

In Tata Consultancy Services v. State of Andhra Pradesh, “After much deliberation, the Supreme Court has ruled that 4software is intellectual property regardless of how it is distributed: on diskettes, floppy disks, magnetic tapes, CD-ROMs,” as part of an entire computer system, as a stand-alone product, with or without a brand name, in a can or not, as a physical or digital good, or as a service. Software is a ‘good’ subject to sales tax regardless of how it is packaged. The court ruled that anything would qualify as goods if it met the following criteria: (a) it could be purchased and sold; (b) it could be conveyed, transferred, delivered, stored, and possessed; and (c) it had the power to do all of the above. If a piece of software, whether it is modified or not, meets these criteria, it is considered to be a good.

The Act provides further clarification that subsequent activities do not constitute software copyright infringement, in line with the TRIPS rules.:

  1. However, in the case of a company and a representative, in the event that a work is created via work under an agreement of administration or apprenticeship, the company will be the underlying owner of the copyright in the aforementioned, unless an agreement contrary to the rule exists.
  2. in the absence of public access being made by the legal owner of the computer program, resorting to whatever methods necessary “to get information for testing the internal operability of a self-created computer program with other programs.”
  3. Commentary, analysis, or testing of a computer program’s operation with the intent of policing the concepts and values that highlight any elements of the software while it is being used to deliver the necessary amusements for which it was designed.
  4. Making copies of, or making changes to, a computer program using a print that was lawfully purchased for personal use is considered piracy.

INFRINGEMENT OF COPYRIGHT AND LEGAL REMEDIES FOR COMPUTER SOFTWARE

Section 51 states that a person is guilty of copyright infringement if, without the copyright folder’s consent, the individual participates in any activity to which only the copyright folder is legally entitled. As well as criminal liability provisions, which state that aiding in the commission of a copyright infraction is a crime punishable by up to three years in prison and a fine of up to Rs. 2 lacs, Chapter XII of the Copyright Act of 1957 also establishes civil remedies for copyright infractions, such as injunction and damages for copyright infringement. For further information on the legal consequences of copyright infringement, see Section 63.

The criminal penalties under Section 63B include a minimum fine of Rs. 50,000/- and possibly prison term of up to three years for anybody who knowingly uses unauthorized copies of computer software. In order to obtain an injunction against further infringements, a plaintiff must file a complaint in “the District Court of the jurisdiction in which the plaintiff resides, has an office, or conducts commercial activity (Section 62 of the Copyright Act, 1957).”

CONCLUSION

The Copyrights Act, 1957, is the primary legal framework for the defense of computer software in India. As a consequence of the requirement of the patent law that the process must result in anything physical, computer software may not be the subject of patents. Although few Indians now ask for it, software protection is crucial as the country’s IT (information technology) sector grows. Most of the international organizations addressed have been endorsed by India, and the country has established its own laws on software protection based on their fundamentals. Software piracy is an annoyance for everyone who uses computer programs. There ought to be strong legal protections in place.

REFERENCES

  1. The Copyright Act 1957 . (n.d.). Retrieved December 20, 2022, from https://copyright.gov.in/Documents/CopyrightRules1957.pdf 
  1. Gothi, S., & Jain, D. (2022, September 20). Copyright Act, 1957. iPleaders. Retrieved December 20, 2022, from https://blog.ipleaders.in/an-overview-of-the-copyright-act-1957/ 
  1. Nayak, S. (2013, September 13) Copyright Protection For Computer Software An Indian Perspective – Copyright – India. Retrieved December 20, 2022, from https://www.mondaq.com/india/copyright/262564/copyright-protection-for-computer-software-an-indian-prospective 
  1. Charan, B. (n.d.). Indian Copyright Software. Legal Service India.com. Retrieved December 24, 2022, from http://www.legalservicesindia.com/article/855/Indian-Copyright-Software.html  
  1. ClearTax. (2021, October 12). Copyright protection of software and copyright notice: Why is it important?  Retrieved December 20, 2022, from https://cleartax.in/s/copyright-protection-software#:~:text=Copyright%20Notice-,Software%20Copyright,and%20compilations%2C%20including%20computer%20databases 
  1. Thangavel, T. (2021, June 16). Copyright protection for computer generated works in the light of end user licensing agreement. iPleaders. Retrieved December 20, 2022, from https://blog.ipleaders.in/copyright-protection-for-computer-generated-works-in-the-light-of-end-user-licensing-agreement/  

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