Protection of Software through Copyrights
Copyright Law
Copyright is one of the Intellectual Property Rights given to the creator of any literary, dramatic, musical, artistic works and producers of cinematograph films and sound recordings. Copyright denotes the right to reproduce, communicate to the public, adapt and translate the work. The Copyright Act protects the author’s economic and moral rights in the copyrighted work. The owner is entitled to reproduce the work, make copies of the work to the public, apart from the right to “sell or give on commercial rental or offer for sale or commercial rental any copy of the computer programme”[2]. The Act allows “fair use” and “reverse engineering” exemptions to owner’s rights as in the case of “literary works”.[3] The owner also retains the right to grant the license in respect of his work.
Conditions to receive protection under Copyright Law in India
To obtain a software Copyright in India, the developer has to record the programme on a tangible medium. As soon as the work is embodied in a tangible medium, it becomes eligible for Copyright protection.
An application is required to be filed with the Copyright Office that contains the complete application form, application fees and a deposit, which are non-refundable. The application form includes the copies of the work which is applied to be registered.
The copyright registration comes into effect from the date the Copyright Office receives all the documents. The time needed to process applications varies depending on the amount of material the Office has received and the method of application..
Rights of Copyright Holder
Under the copyright laws in India, the creator of a computer programme is given the following rights in their copyrighted work
Reproduce the work in any material or electronic form.
Create and issue copies of their work to other people. Translate the work.
Make any adaptations of the work.
To sell the work to any other person.
To sue the violator of their copyright.
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Copyright Infringement
Software piracy is one of the critical modes of copyright infringement, it includes, the reproduction and distribution, or use of a software product without the expressed permission of its author. Software piracy is theft – stealing someone else’s original idea and product. Piracy is the most critical threat for the Software industry and care is required to be taken by the content developer to protect the Software from the possible Piracy scenarios.
In the case of the Startup industry, additional care is required while distributing the Software to possible clients and vendors, as it also poses a threat of potential infringement by way of reverse engineering. Therefore, in the case of startups, the danger is not much from the mass copying and distribution of the software, but from stealing the code for its own advantage.
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What does not constitute the infringement?
The copyright laws in India clarify that the following acts do not constitute software copyright infringement:
To make copies or adaptation of a computer programme by a person who legally owns a copy to make backup copies as a measure against loss, destruction or damage.
To obtain information required to operate any independently created computer programme.
To observe, learn or test the functionality of the programme and determine its ideas and principles.
Make copies or adaptation for non-commercial personal use.
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Scope of Infringement of Copyrighted Software
Copyright infringement includes but is not limited to:
End-user piracy: End-users who are utilising unlicensed software on their infrastructure, or have installed more copies than their entitlement under license agreements.
Hard-disk loading: Act of the computer dealers pre-installing illegal copies of software onto computers/laptops before its sale.
Software counterfeiting: The illegal duplication and subsequent re-distribution of the software in a form that is almost identical to the genuine product.
Internet piracy: The latest and fastest-growing form of software piracy. Third parties place software programs on the Internet for downloads free of charge or a fee. Pirates also tend to use the Internet as a means of advertising to solicit sales.
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Is it mandatory to register a Copyright? Isn’t the protection available automatically?
It is true that when anyone put © on work created, he or she will you automatically get copyright protection, the moment the work of expression is transformed in a tangible form. Technically, it means that the creator owns the copyright, and no one else may copy, distribute, display or make adaptations of the said work/publication without the creator’s permission. However, it becomes a big problem, the moment someone infringes the copyright! As protection from the infringement is not available for unregistered copyrights. Though, in such a scenario, the creator may file a lawsuit in the court of law and try her/his luck to obtain an order of injunction against the infringing entity and seek compensation against her/his losses. However, as per the current legal position, registration of the Copyright is considered as the primary evidence and therefore, it becomes easy to obtain reliefs when the copyright is registered. Moreover, considering the complexity and expensive nature of the lawsuits, it is imperative to have the Copyrights registered to make an effort worthwhile. Additionally, the registration would also help to quantify the damages in terms of the monetary values and would help in deriving the compensation.
The registration of copyrights is like availing an insurance policy:
Having the certificate of the filing of the copyright makes it easy even for the infringer to understand the consequence of the infringement. Therefore, with a prompt registration, chances of a future breach and subsequent litigation can be reduced significantly. Moreover, if the costs incurred for the registrations are compared with that of the infringement and litigation its minuscule. Therefore, registration of the copyrights served like insurance, that must be availed to protect future losses.
Limitations of Copyright Protection and Other Options
Copyrights are the prescribed method to obtain the protection for the Software code under the current scheme of the acts and it protects for a longer duration. However, it is crucial to understand that protection under copyright is limited and a comprehensive strategy to protect the software is required for all-round protection. Some of the ways through which it can be achieved include protection mechanism through Trade Secrets, Contracts and Patents.
Therefore, in conclusion, a layered approach of creating IP rights is crucial for sustained protection of the software codes. However, the jurisprudence on software protection is not well developed in the country and the courts tend to follow the British or American judicial approach. In the upcoming articles, we will throw more light on other aspects of protection of “Computer Code” through Patents, Contracts and Trade Secrets.
[1] Section 3(k), Patents Act
[2] Section 57, Copyright Act
[3] Section 52, Copyright Acts