India: What is Fair Use of Computer Programs Under the Indian Law?

Last Updated: 26 October 2005
Article by Manisha Singh Nair

Preface

As a matter of public policy, under the rubric of ‘fair use doctrine’ certain acts are kept out of the domain of copyright infringement. There are multifarious reasons underlying these statutory exceptions. Freedom of speech and expression is a fundamental right; so to facilitate this right it is important that the copyright law does not prevent a person to reproduce a work in which copyright subsists for the purpose of criticism or review. Likewise, the copyright protection should not operate as an impediment to the non-commercial academic and research activities.

Fair use exception is of particular importance to the Computer programmers who invest hours in writing copyrightable programs. The prime concern for the IT industry would be -that their intellectual property rights are not circumvented by invoking this ‘fair use’ exception. Computer programmes or softwares are most susceptible to piracy, keeping this in mind the fair use of the computer programmes vis-à-vis has been circumscribed. The fair use exceptions with respect to the computer programs have been elaborated through the Amending Acts of 1994 and 1999.

Fair Use of Computer Programs

Computer programs are defined as "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". Though computer programs are protected as literary works in India, due to the special nature of computer programs, fair use of computer programs is enumerated distinctly. So the fair use of literary work is not the fair use of the computer programme. The Following acts would not amount to infringement of copyright in a computer program:

  1. Making of copies or adaption of a computer programme by the lawful possessor of a copy of such programme from such a copy
    1. for the purpose for which it is supplied; or
    2. to make back-up copies purely as a temporary protection against loss, destruction or damage in order to utilize the programme for the purpose for which it was supplied.

  2. where such information is not readily available, doing any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with the other programme by a law possessor of a computer programme.
  3. the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied.
  4. The making of copies or adaption of the computer programme from a personally legally obtained copy for non-commercial personal use.

Extent of fair use exception with respect to the computer programme

Lawful possessor can make a backup copy for preventing loss to due the failure of system or for the non- commercial personal use. A lawful possessor of the programme can make an adaption in the programme to make it compatible to his machine if this imperative to utilize it for the purpose for which it was purchased. The lawful possessor can make back-up copies purely as a temporary protection against loss, destruction or damage in order to utilize the programme for the purpose for which it was supplied. Unlike the U.S. Law, the Indian Act does not state that all-archival copies are to be destroyed in the event that continued possession of the computer program should cease to be rightful. In absence of any express direction can we imply this condition under the Indian law? Certainly, where copyrighted software is licensed for a particular time, the hitherto lawful possessor would cease to be in lawful possession after the expiry of the time stipulated in the license contract. If the backup copies were not destroyed, it would be an act of infringement.

It is permitted to experiment with the computer programme to understand the basic ideas underlying the computer programme provided it is necessary to functions for which the computer programme was supplied. Where the functioning of a computer program is studied and a programme that performs the similar function is generated, not being a copy of it, would such an act amount to infringement? Where the programme is not substantially similar to one observed or studied, it should amount to infringement. All these questions will some day come up for adjudication before the Courts.

As mentioned above, the Act permits the making of copies or adaption of the computer programmes from a personally legally obtained copy for non-commercial personal use. Now suppose a computer programme is licensed on a ‘single machine use’ terms would it not be an infringement, if the lawful possessor duplicates the programme for another machine for his own personal non-commercial use? Going by the language of the exception, such an act is permissible under the Act but is in clear violation of the terms of the license. It is difficult to understand how such a conflict would be reconciled.

Conclusions

The U.S. Courts while considering whether the use of a copyrighted matter amounts to ‘fair use’ takes into account factors such as -whether the work is published or unpublished or; what is the impact of the impugned use of the market value of the copyrighted matter etc or whether the user should have purchased the copyrighted matter or not. The U.S. courts have already been seized with many cases involving fair use of computer programmes as a defence. It would be interesting to see what jurisprudence the Courts evolve while determining the boundaries of ‘fair use of computer programmes in India.

© Lex Orbis 2005

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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