In this day and age, software play a major role in our daily lives. You want to prepare a presentation on computer for your client or make online payment or wish to video chat with your family/friends/colleagues, all of this and much more is made possible by the various computer software. Not just this, computer software are playing crucial role in the field of healthcare, education, banking etc. A lot of money, effort and time is invested by the owners to develop the software but the same can be copied with minimal effort & cost. Unauthorized use of the software cause a lot of damage to the business and intellectual property rights of the rightful owners of the software. Therefore, it is important that they are protected.
In this article I am going to discuss about software and their protection under the Copyright law in India. The Copyright law in India is governed by the Copyright Act, 1957 which was last amended in 2012.
Software in simple words can be explained as set of instructions given to the computer to produce the desired output/result. As per Section 2 (ffc) of the Act “computer programme” means a 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.
As per Section 2 (y) of the Act, Copyright law extends protection to works, namely a literary, dramatic, musical or artistic work; a cinematograph film and a sound recording. Further, as per Section 2 (o) “literary work” includes computer programmes, tables and compilations including computer Databases. Therefore, computer programmes/software squarely fall under the head of literary works and are entitled to copyright protection (provided they are original).
Copyright protection for computer program/software is automatic on its creation and it is not mandatory to register the same with the Copyright office. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law in cases of dispute relating to ownership of copyright and it is therefore advisable to register the software. Copyright Act gives the owner/copyright holder of the software the exclusive right to do or authorize the doing of any of the following acts:
a) the right to reproduce the work in any material form, including storing it in any medium by electronic means;
b) to issue copies of the work;
c) to make an adaptation or translation of the work;
d) to sell or give on commercial rental or offer for sale or commercial rental any copy of the computer program.
If any person, without a license from the owner of copyright, does anything, the exclusive rights of which are granted to the owner of copyright as mentioned above then the same shall amount to infringement of copyright. Also, an act of infringement is committed by a person who makes for sale or hire or lets for hire or by way of trade, displays or offers for sale or hire or distributes for the purposes of trade, infringing copies of the computer program/software.
Some of the common methods adopted for copyright infringement in a software are:
(1) companies/organisations installing more number of software copies on the computers of the company/organisation than permitted by the End-User License Agreement;
(2) local vendors reproducing the software on blank CD/DVD and selling the same;
(3) software is downloaded from the Internet or distributed via the Internet without the permission of the copyright owner;
(4) shops selling new computers pre-loaded with illegal copies of the software.
The Act provides civil remedies for infringement of copyright and the owner of the copyright can file a suit for infringement. Relief is available in the form of temporary or permanent injunction; damages and rendition of accounts; cost of the proceedings and reasonable attorney’s fee. Apart from right to civil action the owner of copyright can also avail remedies under criminal action. Person found guilty of copyright infringement can either be punished by way of fine and/or imprisonment. The Act also gives power to police officer, not below the rank of a sub-inspector, if he is satisfied that there is infringement of copyright under section 63, to seize without warrant the infringing copies of the work and produce them before the Magistrate.
Conclusion:
The courts in India are aware of the growing menace of copyright infringement and the damage it has been causing to the software companies. In order to curb the menace and discourage the law breakers the courts have been awarding punitive damages in addition to compensatory damages.
Author: Kanika Aeri
Dated: 24th September, 2020
The author can be contacted at email@edgewithipr.in
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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