Laws on Copyright of Software

Introduction about Copyright

Economic and social development of a society is dependent on protection and encouragement given to its creativity. Registration of a copyright for a matter ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. However, under Indian law, obtaining the registration is not prerequisite for obtaining copyright in a work.

The Copyright Act, 1957 (“Act”) along with the Copyright Rules, 1958 is governing law for copyright matters. The Act was substantially amended in 2012. The author of the work is the first owner of the work. The Act provides to protect the efforts of:

  • Writers
  • Artists
  • Designers
  • Dramatists
  • Musicians
  • Architects and
  • Producers of sound recordings, cinematograph films and computer software

Copyrights is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. The article focuses on small issue of Indian law on copyrights for computer software.

A. Computer Software

Software is a generic term for organized collections of computer data and instructions, categorized into:

(a) System software that provides the basic non-task-specific functions of the computer, and

(b) Application software, which is used by users to accomplish specific tasks.

The computer software or programme can also be registered as a ‘literary work’ under the Act. As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. The Computer software can also be protected by way of filing a patent application.

Section 2(ffc) of the Act defines ‘Computer program’ as a set of instructions expressed in words, codes, and 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. Hence, software program can certainly be protected under Copyright law.

The computer software can be categorized into two categories-

(a) Proprietary Software: Owned by an individual or a company

(b) FLOSS (Free/Libre/Open Source Software): Free software means the software for use any where on any number of computers and in any technical situations. Fixing the bug can augment such software, augmenting its functionality and studying its operations. Redistribution can be done at cost or at charge even.

When a customer purchases a pre- installed software from a PC provider (let’s say from an authorized distributor) then that Operating System package license is called as Original Equipment Manufacturer (OEM) license. The OEM license is specific to a particular machine on which the PC provider installs it. Therefore, this type of licensed version of software cannot be installed on other machine by a third person.

Various Parts of Computer Software and their Protection in IPR:

S.NO. VARIOUS PARTS OF COMPUTER SOFTWARE CLASS OF PROTECTION OF IPR
 1. Source code and Object code Copyright (literary work)
 2. Operating System: allows application software to interact with the hardware. Software code can be protected under Copyrights
 3. Application Software Copyright

B. Law Points on Jurisdiction

It is clear that copyright exist for a computer programme however, it is important to understand that the concept of Jurisdiction of court[1] in case of any violation. As per the Act, every suit or other civil proceeding in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction. A “district court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.

C. Period for granting Copyright Protection

Copyright protection extends for author’s lifetime plus 60 years from the beginning of next first calendar year in which the author dies. If it’s a joint work then the protection is extended from the author who dies last even in case of computer programme.

D. Patent of Computer Software

The Indian Patent Act allows a new product or process involving an inventive step and capable of industrial application to be patentable, it also provides a list of subject matter that cannot be patented. Section 3(k) specifically states that “computer program per se” is not a patentable subject matter. The software innovations are considered patentable. A software invention once patented will be valid for 20 years.

Conclusion

The following are permissible actions for computer software is allowed:

  • A backup copy for personal use will be considered as fair use.
  • Making copies or adaptation of the computer programme from a personally and legally obtained copy for non-commercial personal use.
  • A single license on a single device is considered as fair use.
  • Installation of licensed software meant for a single machine but used on two different personal machines may not be considered fair.
  • Downloading genuine Software from authorized link
  • Decompiling software to fix an issue is considered fair

 


[1] Section 62 in the Copyright Act, 1957

Published :
August 19, 2015
Practice Area :