In India the Copyright Act, 1957 grants protection to original expression and computer software is granted protection as a copyright unless it leads to a technical effect and is not a computer program per se. The computer software which has a technical effect is patentable under India Patent Act, 1970. As per centre for interest and society (CIS) the number of software patents granted in India is approx 200 from the year 1999 till September, 2010. Generally Computer software which does not have a technical effect is protected under copyright law. For a copyright protection, computer software needs to be original and sufficient effort and skill must be put into impart it originality. But a program which only generates multiplication tables or algorithms may not suffice the degree of effort required for protection. Apart from being original not copied from elsewhere, the work should be first published in India or if the work is published outside India the author on the date of publication or if the work is published outside India the author on the date of publication or if the author is dead at the time of his death should be a citizen of India1.
In case of unpublished work2, the author on the date of making of a work should be a citizen of India or domiciled in India. The Government accords the same protection to a foreign copyright author's work which is published in any other country which is a member of Berne Convention or UCC, as the protection provided to an author who is a citizen of India. In India, computer software does not form the subject matter of patent as it does not fulfill the requirement for an invention which is provided under the Indian Patent Act in conformity with the provision of TRIPs, Berne Convention, WIPO Copyright Treaty etc.
The Copyright Act protects the author's economic and moral rights in the copyrighted work as stated in section 14 and 57 respectively, including the rights in computer software/programmes. In the case of computer software/programmes, the copyrights owner is entitled to reproduce the work, issue copies of the work to the public make any cinematographic films or sound or adaptation of the work, apart from the right 'to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer software/ programmes. Such commercial rental does not apply in respect of computer software/programmes where the computer programme itself is not essential object of the rental. This provision on rental rights is in line with Article 11 of the TRIPS Agreement and was added in the Act in 1999. Even though the TRIPS Agreement does not specifically protects the moral rights, buy the same are protected under the Copyright Act, 19573.
Computer Program- A Literary Work
Section 2 (o) defines 'literary work' and includes computer programs, tables and compilations including computer databases. Section 13 provides the categories of work in which the copyright subsists which includes original literary work. The author of a work is the first owner of copyright in the work. However in case of employer-employee if a work is made in course of employment under a contract of service or apprenticeship, the employer shall be the first owner of the copyright in the above of any contract to the contrary4. These provisions of the copyright law are applicable mutatis mutandis to computer software/ programmes as well.
Software contracts, like many other transactions, are governed by the common law principal as embodied in the Indian Contract Act5. Contract can be in the nature of sale or assignment/ license. If the computer software is considered as a 'good', the Sale of Goods Act, 1930 will have relevance in the formation and execution of the sale contract. Section 2(7) of the Sale of Goods Act, 1930 defines 'good' as 'every kind of movable property other than actionable claims and money, and includes stock and shares, growing, crops grass...' This definition of goods includes all types of movable properties, whether tangible or intangible.
In Tata Consultancy Services v. State of Andhra Pradesh6, the Supreme Court considered computer software is intellectual property, whether it is conveyed in diskettes, floppy, magnetic tapes or CD ROMs, whether canned (Shrink-wrapped) or uncanned (customized), whether it comes as part of computer or independently , whether it is branded or unbranded, tangible or intangible; is a commodity capable of being transmitted, transferred, delivered, stored , processed , etc. and therefore as a 'good' liable to sale tax. The court stated that, 'it would become goods provided it has the attributes thereof having regards to (a) its ability; (b) capable of being bought and sold; and (c) capable of being transmitted, transferred, delivered, stored and possessed. If a software whether customized or noncustomized satisfies these attributes, the same would be goods.'
Infringement of Copy right and Legal Remedies for the Computer software
Section 51 defines infringement of copyright and states that a person infringes copyright of another if he unauthorizedly commits any act which only the copyright folder has exclusive rights to do. Civil remedies to copyright infringement s are provided in chapter XII of Copyright Act, 1957 granting injunction and damages for copyright infringement and criminal liability provisions are provided in chapter XII of Copyright Act, 1957 wherein abetment of infringement is also unlawful and punishable with imprisonment of upto three years and a fine up to Rs. 2 Lacs7. A person who knowingly uses the infringing copies of Computer software commits a criminal offence punishable with imprisonment for not for not less than seven days extendable up to three years and a fine not less than Rs. 50,000/- which may extend to Rs. 2 Lacs. Section 62 of the Copyright Act, 1957 entitles a Plaintiff to file for a suit for injunction against infringements within District Court of the jurisdiction where Plaintiff resides or carries on business or works for gain. Infact, of late Indian Courts have accepted petitions against unknown Defendants or persons identifiable through their IP Addresses in internet law related litigation. Popularly known as John Doe order in the US Courts, India had adopted the principal of accepting petitions against unknown persons in defamation cases or Intellectual property infringements including cases relating to software piracy. This is a positive legal enforcement strategy adopted by Indian Courts to resolve internet related litigation where defendants cannot be identified at stage of filing of the position.
1 Section 13(2)(i) of the copyright Act, 1957.
2 Section 13(2)(ii) of the copyright Act, 1957.
3 Section 57 of the Copyright Act, 1957.
4 Section 17 of the Copyright Act, 1957. See B.N Piros v. state of Kerela, 2004 IPLR (April) 109.
5 V.T Thomas v. Malaya Manorama, AIR 1988 Ker 291.
6 Tata Consultancy Services v. State of Andhra Pradesh, 271 ITR 401 (2004)
7 Section 63 of the Copyright Acts, 1957
8 Section 63(B) of the Copyright Acts, 1957.