This article is written by MISS. KHUSHI BAJPAI, 2nd year learner from SYMBIOSIS LAW SCHOOL, NOIDA
The Copyright Act of 1957 in India protects original expression and, unless it has a technological function and is not a computer program per se, computer software is protected as a copyright. According to the India Patent Act of 1970, computer software that has a technological effect is patentable. According to the Center for Interest and Society (CIS), approximately 200 software patents were granted in India during the years of 1999 and September of 2010. In general, copyright law protects computer software that has no technological effect. Computer software must be original in order to be protected by a copyright, and this originality must be cultivated with sufficient skill and effort. However, a program that just develops algorithms or multiplication tables would not be able to provide the level of effort needed for protection. In addition to being original and not plagiarized, the work should have been published for the first time in India, or if it had been published outside of India, the author should have been an Indian citizen on the date of publication, or if the author had already passed away at the time of publication, if the work had been published outside of India.
In the case of unpublished work, the author must have been an Indian citizen or resident on the date the work was created. The Government provides the same level of protection to a foreign copyright author whose work is published in any other nation that is a signatory to the Berne Convention or the UCC as it does to an Indian author. As computer software does not meet the definition of an invention as defined by the Indian Patent Act in accordance with the provisions of TRIPs, the Berne Convention, the WIPO Copyright Treaty, etc., it cannot be the subject of a patent in India.
Author’s right
According to sections 14 and 57 of the Copyright Act, respectively, the author’s economic and moral rights in the copyrighted work are protected, including the rights in computer software and programs. Except for the right to “sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer software/programs,” the copyrights owner is permitted to reproduce the work, issue copies of the work to the public, and make any cinematographic films or sound or adaptations of the work. When renting computer software or programs where the computer program itself is not the primary aim of the rental, this commercial rental clause does not apply. This rental rights clause, which was included in the Act in 1999, complies with Article 11 of the TRIPS Agreement. Even though the TRIPS Agreement does not directly protect moral rights, the Copyright Act of 1957 does.
Computer program- a literary work
Computer programs, tables, and compilations, including computer databases, are included in the definition of “literary work” in Section 2(o). Original literary work is one of the categories of work listed in Section 13 where the copyright is present. The first owner of copyright in a work is the author. The employer, however, shall be the initial owner of the copyright in the above of any contract to the contrary if a work is created during employment under a contract of service or apprenticeship. Computer software and programs are also covered by the copyright law in a similar manner.
Software contracts
The Indian Contract Act5, which incorporates common law principles, governs software contracts and many other activities. A contract may take the form of a sale, assignment, or license. The Sale of Goods Act, 1930 will be relevant in the establishment and execution of the sale contract if the computer software is deemed to be a “good.” A “good” is defined as “any sort of movable property other than actionable claims and money, and includes stock and shares, growing, crops, and grass” in Section 2(7) of the Sale of Goods Act of 1930. The term “goods” as used here refers to all mobile items, both tangible and intangible.
In Tata Consultancy Services v. State of Andhra Pradesh, the Supreme Court thought Computer software is intellectual property regardless of how it is delivered, including on diskettes, floppy drives, magnetic tapes, or CD ROMs; whether it is canned (Shrink-wrapped) or unscanned (customized); whether it is branded or unbranded; tangible or intangible; and whether it is packaged with a computer or separately. As a result, it qualifies as a “good” subject to sales tax. According to the court, “it would become goods if it has the characteristics of goods, including (a) its ability; (b) the ability to be purchased and sold; and (c) the ability to be transported, transferred, delivered, stored, and possessed.” If software—customized or not—satisfies these criteria, it would qualify as the same type of product.
Infringement of copyright and legal remedies for the computer software
A person violates another’s copyright if they unlawfully carry out any conduct that only the copyright owner has the exclusive right to do, according to Section 51 of the law. Chapter XII of the Copyright Act of 1957 contains civil remedies for copyright infringements, granting injunctions and damages for copyright infringement, as well as criminal liability provisions, which make abetment of infringement illegal and punishable by up to three years in prison and a fine of Rs. 2 Lacs. A person who intentionally uses pirated software is guilty of a crime that has a minimum sentence of seven days in jail and a maximum of three years in prison as well as a minimum punishment of Rs. 50,000 and a maximum fine of Rs. 2 lacs. According to Section 62 of the Copyright Act of 1957, a plaintiff has the right to initiate a lawsuit for an injunction against infringements in the district court of the country in which the plaintiff resides, conducts business, or engages in gainful employment. In fact, Indian courts have recently accepted petitions in cases involving internet law against unidentified defendants or those who can be identified by their IP addresses. India adopted the practice of admitting petitions against unidentified parties in defamation lawsuits or intellectual property infringement cases, including cases involving software piracy, which is popularly known as the John Doe order in US courts. When defendants cannot be identified at the time of bringing the case, Indian courts will use this positive legal enforcement technique to resolve the dispute.
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