LEGAL PROTECTION FOR COMPUTER SOFTWARE IN INDIA

LEGAL PROTECTION FOR COMPUTER SOFTWARE IN INDIA

Executive Summary:

• • • The term SOFTWARE is a collection of instructions that tell a computer what to do. It comprises of an entire set of programs, procedures and routines associated with the operation of a computer system
    • The two major statutes that cover software protection in India are the Copyrights Act, 1957 and the Patents Act, 1970.
    • Copyright laws with respect to software protection protect the expression of idea and not the idea itself.
    • The methods and algorithms within a computer program are not protected under copyright.

Introduction:

In recent times, India has emerged as a software services leader in various areas of focus like operating system platform, applications, network management, for application sectors such as banking, insurance, health care, manufacturing etc. to protect software development. This new development has called for widening the scope of Intellectual Property Rights (IPR) as there is danger to the software sector from unauthorized production or piracy.

The term SOFTWARE is a collection of Instructions that tell a computer what to do. It comprises of entire set of programs, procedures and routines associated with the operation of a computer system.

Overview of Software Copyright:

The major statutes that cover software protection in India are the Copyrights Act, 1957 and Patents Act, 1970. The Copyright Act 1957, under section 2 (o) defines “literary work” as computer programs, tables and compilations including computer databases.

The Patents Act, 1970 provides that a computer program per se other than its technical application to industry or a combination with hardware is not patentable. Thus, software can be registered as a patent only if it is in combination with hardware and not otherwise.

It is important to note that the Copyright Laws with respect to software protection protect the expression of idea and not the idea itself. In other words, it is termed as computer program which includes, human readable form called “Source Code” and machine executable form called “Object Code” and related manuals thereof are protected along with it. So copyright of computer programs prohibits copying of program structure and design. It cannot be overlooked that the copyright protection does not arm under it, the methods and algorithms within a program as the expression.

How to Register Copyright for a Software Copyright ?

• Application has to be filed, detailing the ‘Source Code’ (kept confidential by Authority) and ‘Object Code’ (published by authority) along with proof of name, nationality proof of the applicant, work description, address proof, copies of the work submitted, the date of publication of work.
• After filing the application, the authority publishes the source code in the diary.
• Source code is made visible to the public for 30 days and if no objections are raised, the process continues further and in case of objections copyright hearing is taken.
• If accepted, the examiner will check the application for errors and send a letter of discrepancies, if any, to the author, and in case there are no errors, the application is passed.
• Where the work is accepted by the registrar copyright notice is given on the copies of the work through the © (copyright) symbol.

Option for registering software copyright:

• Online registration
• Registration with Fill-In Form CO (Copyright Office)
• Registration with Paper Forms

Rights of the Author of Software Copyright:

In case a group of individuals creates the software, the government grants all these rights to all of them.

• The right to store the work in any electric method or even reproduce the work.
• Right of issuing copies of the work to the public.
• Right of displaying the software.
• Translation of the work in any format.
• Creation of adaptation of the work.
• Selling or renting the work for the required purposes.

The term of copyright in literary work published within the lifetime of the author is 60 years from the beginning of the calendar year following the year in which the author dies.

Infringement of Copyrighted Software: (Also known as Software Piracy ):

In simple terms, Software Piracy is a theft – i.e. stealing of someone’s original idea and product. In legal terms, it means reproduction, distribution or use of a software product without the permission of the Author. It is done in following manner:

• The right to store the work in any electric method or even reproduce the work.
• (i) End User Privacy: Here the company or individual users who have obtained license of installation of software for one’s computer, installs it on more computers under the license agreement. This is called ‘under licensing’ and it is becoming a grave concern to the Business Software Alliance (BSA). To avoid this, end user licensing agreements (EULA) are executed between the author and the purchaser of the software.
• (ii) Hard Disk Loading: Illegal pre-installation of software on to the computers by computer dealers prior to its sale or installation of legal acquired copy on more than one machine and such computers are usually sold without any form of licensing documentation or disks.
• (iii) Software Counterfeiting: The illegal duplication and sale of software in a form that is almost identical to the genuine product.
• (iv) Internet Piracy: Here the software programs are placed on the internet for free downloads by third parties and also represented for its sale. This is the latest and fastest growing form of software piracy.

Remedies for Infringement of Copyright Software:

• 1. Temporary and Permanent Injunctions.
• 2. Monetary Damages caused along with infringers profit.
• 3. Statutory damages.
• 4. Impounding and destruction of all infringing copies, including masters.
• 5. Court Costs along with Attorney fees.

Conclusion:

With increase in competition and e-business in all aspects and all fields of economic growth, it is necessary for every software author to register copyright not only for his personal protection but also as to not hamper the economic growth of the country in any manner vide software piracy.

Regards,
Legal Team

Proind Business Solutions Private Limited
306, Tower B, I-thum, Plot No A-40, Sector 62, Noida, UP, India- 201301
No.: +91 120 4224203
Email: info@proind.in, website: www.proind.in