This Blog is written By Mr. Sarthak Potdar of prestige institute of management and research, Indore & Miss. Divya Shah of Pravin Gandhi college of law, Mumbai
Introduction
Software is a product of human
intellect and hard work; it would be appropriate to term it as “intellectual
property”. Considering the pivotal role, it plays in the world economy and its
development, the protection of software is crucial and it needs to be dealt with.
The problems faced by the said sector mainly deals with unauthorized production
or piracy. The protection has become increasingly necessary because every day
the economy loses out on a staggering amount of money. Piracy is increasingly
becoming a global menace.
Software copyright is generally used
by developers to curb privacy and the unauthorized copying of their software. In
simple words, A software patent or copyright is a legal way to protect your software source code,
idea, or invention, Thus infringement of the said copyright can lead to legal
consequences.
In essence, the reasons for
protecting software can be divided into economic reasons and moral reasons. Economic
reasons suggest that intellectual property must be protected so as to
reward the person creating it; the mind behind the creation of the software
must yield some fruit for the same. It will not only encourage that individual
to work hard but also encourage others to be more creative. Investment will
also, be stimulated by the promise of legal protection bearing in mind that
investment in the development of computer software can be substantial, it will in
fact benefit the society by increasing and stimulating employment, technical
development, commercial growth, and wealth. The moral reasons suggest
that a person who has created computer software has put an enormous amount of
work into its creation and has subsequently created a bond with the software;
it morally belongs to him. The creator has brought the object into existence
and is the sole owner of the software; therefore, he should be able to prevent his
software from being exploited without permission and be able to control its
subsequent use.
There has always been a debate against
providing legal protection to software because it stifles competition and
allows the owner of the invention to charge exorbitant prices and to make a
profit out of proportion to the investment and risks undertaken. Whereas, the
opposing view which strikes on the face of the law is that if an individual has
put in his talent and hard work for software then he should be allowed to
protect it from theft.
A study conducted by a competent
journal in the U.S. has shown that by decreasing piracy overall by 10 % over 4
years will lead to nearly 4,50,000 jobs, over the US $40 billion in economic growth.
Two forms of Intellectual Property
Rights that can protect software are patent(s) and copyright. Protection sought
by copyright is preferred in most countries as it is wider and the conditions
to be fulfilled in order to be protected are not as onerous as in patent law.
Patent on the other hand is capable of providing protection to a relatively
lesser number of items, as it imposes numerous conditions in order for a
product or process to be qualified as a patent. Patent granted is for a lesser
number of years than copyright and is more expensive as compared to acquiring copyright. In fact, copyright only seeks to protect the unauthorized use of an expression of ideas and not a complete ban on the use itself. In the case of
copyright, most countries enforce the right to prevent unauthorized use of work
even if the work is not registered.
The legal position in India
Computer software generally does
not form the required subject matter of patents as the process must result in
something “tangible” and “vendible.” Though not many in India demand software
protection it is a necessity considering the growth of the Information the technology industry in the country. India has adopted international instruments
like TRIPS, Berne Convention, WIPO, etc. and has also incorporated law on
software protection, as discussed further. The major statutes which govern
software protection in India are the Copyrights Act, 1957 and Patents Act,
1970.
5 National Association of Software
and Service Companies (“NASSCOM”) is an ardent supporter of strong intellectual
property laws in India and has been a major influencer in the said field. In 1990,
NASSCOM even began an active public awareness campaign to educate users about
the lawful use of software, but it was considered by jurists as ahead of its
time. NASSCOM is actively working towards providing anti-piracy measures. It has
been continuously engaged with the government of India for required changes in
the IPR laws, keeping in line with WIPO and other international laws and
treaties.
Copyrights
Act, 1957
Copyright was said to be associated
just with artistic products back in the day but now copyright is also an
important weapon in protecting computer software. The Copyrights Act provides
copyright protection for original works of authorship fixed in any concrete
medium of expression. The Act confers on the copyright owner exclusive rights
over the reproduction, preparation of derivative works, distribution. Registration
of copyright in a work is necessary to proceed with an action for infringement
of it, If copyright has not been protected than the owner has no rights over
the said software, until the court grants such rights.
Section
2(ffc) of the Copyright Act 1957 describes a computer program 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"
The said section is
read with Section 2 (o) of the act which states that the term 'literary work'
and includes “computer programs, tables, and compilations including computer
databases”.
The author of a work is the first owner of the copyright in the work and claims the
rights. However, in the 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 contrary,
as per the contract between the two.
To
establish the claim of copyright infringement:
The
Copyright owner, in this case, the ‘Plaintiff’ need to establish that the
program is original, recorded, and his own work. Once this is established, the
owner thereof needs to show proof that the defendant has copied his program
whether literal or non-literal copying. And the part copies represent a substantial part of the owner’s program It is not necessary to establish that
an exact copy has been stolen but a mere part of the plaintiff’s program being copied by the defendant and then used in his own program shall be called
as an infringement. A small part of a computer program may be substantial if
it goes to the root of the problem, quality is an important aspect as compared
to quantity. If two software programmers write two identical software
independently, in that case, there will be no infringement and both will get copyright.
Copyright
Owner’s Right:
The
owner of the copyright program has the exclusive right to do any of the
following acts or authorize any of the following acts to be done;
·
To reproduce the work in any material
form including the storing of it in any medium by electronic or other means;
·
To issue copies of the work to the public and
perform the work in public, or communicate it to the public as per mere whim of
the owner
·
To make any cinematographic film or
sound recording in respect of the work;
·
To make any translation, adaption of the
work;
·
To sell or give on commercial rental any
copy of the computer program.
Infringement
and Legal Remedies
Section 51 of the act
defines infringement of copyright and states that a person infringes copyright
of the owner, if he unauthorizedly commits any act which only the copyright the folder has exclusive rights to do, this includes privacy as well as mere
posting a software online and claiming it to be one’s own. Civil remedies to
copyright infringement is provided in chapter XII of Copyright Act, 1957 which
includes granting injunction and damages for copyright infringement. The
provision for Criminal liability is to be found in chapter XII of
Copyright Act, 1957 wherein abetment of infringement is also unlawful and shall
be punished with imprisonment of up to three years and a fine up to Rs. 2 Lacs.
Section 62 of the
Copyright Act, 1957 entitles a Plaintiff to file for a suit of the injunction
against infringement within the District Court of the jurisdiction needless to say the plaintiff must reside or carry on business or works for gain. India had adopted
the principle of accepting petitions against unknown persons Intellectual
property infringements.
In
a landmark case, Microsoft Corporation v. Yogesh Papat,
the High Court of Delhi has awarded damages to the sum of 1,795,000 for
copyright infringement. The petitioner i.e. Microsoft had alleged that the
defendant i.e. Yogesh Papat, working in the field of selling assembled
computers were loading the software in which the plaintiff had copyright, petitioner
further alleged that the defendant did not have the license on the hard disk of
computers being sold by them. The plaintiff sued the defendant for infringement
of copyright and financial loss to the plaintiff. The Court issued a decree in
the favor of the petitioner and granted injunctive relief, order for delivery
up and decree of damages.
Patents
Act, 1970
A patent is said to be a right exclusively granted to a person who has invented a
new and original idea. An improvement of an existing article or finding a new
process of makes some articles.
The
Patents Act, 1970 states that a computer program or software per se other
than its technical application to industry or a combination with hardware is
not patentable. However, there can be certain
exceptional situations wherein the computer program or software may qualify
as patentable. Thus, to claim patent over a certain program or software, the
following determining factors and its requirement need to be met with;
- the invention must
consist of patentable subject matter, which must be capable of industrial
application;
- it must be new and
original;
- it must involve an
inventive step; and
- the disclosure of
the invention in the patent application must meet certain formal and
substantive standards
Section 2(1)(l) of the Patents Act 1970,
states that "'new invention' means any invention or technology
which has not been anticipated by publication in any document or used in the country
or elsewhere in the world before the date of filing of a patent application with
complete specification, i.e., the subject matter has not fallen in public
domain or that it does not form part of the state of the art." However,
section 3(k) of the Patents Act 1970 states that "a mathematical
or business method or a computer program per se or algorithms" are
not inventions and therefore not patentable.
In the Report
of the Joint Committee (Presented to the Rajya Sabha on the 19th December,
2001), the intention of attaching the words “per se” was elaborated in the said a report stating that "This change has been proposed because
sometimes the computer program may include certain other things, ancillary
thereto or developed thereon. The intention here is not to reject them for the grant of a patent if they are inventions. However, computer programs as
such is not intended to be granted patent.4
The interpretation of section 3(k) of the
Patents Act 1970, is that not to consider all software for patent protection,
however, there will be certain cases where the software stands high on all
criteria necessary for patenting, in those scenarios such software must be
granted patent. Strict check on the application is necessary and therefore, it will
lead to restricting the creativity with the ideas which have already been
patented. Therefore, the software can be protected under the patent regime if it
has a "technical effect".
Guidelines for Examination of Computer related
Inventions (CRIs) states the basic criteria for examination of CRI:
- Novelty: It is the most essential requirement for determining patentability. Any subject
matter, description or information disclosed before the date of filing /
date of priority will not be considered as a novel and therefore nonpatentable.
- Inventive Step: This step can be identified under a set of parameters:
- The inventive concept in the patent;
- Identifying
common general knowledge in the state of art on the date of priority;
- Identifying the difference in the invention claimed and cited inventions;
- Industrial
Applicability: Every invention must have an industrial application, i.e.
which can be made or used in the industry.
Further criteria which are often taken into
consideration other than the triple test of Novelty, Inventive step and
Industrial applicability is that; Firstly, the invention must be related to the computer where software is essential and gives technical effect. Secondly,
that the invention is more than mere technical effect by software,
i.e. there is a tangible element which interacts with the software and thus
making the set of software and tangible element software.
In Accenture Global Service GMBH Vs. Assistant Controller of
Patents and Design and the Examiner of Patents,
the petitioner sought for a patent on a method to generate a data mapping
document. The objection against the method's technical effect being
unidentifiable, the applicant submitted that the present claims recite
"technical solution to a technical problem of the need for a data document
design system and design tools that address one of the most important
technical challenges faced by database systems is data migration." After
analyzing the inventions and the case on merits, the Patent Office observed that
the invention is not software per se, it is rather a system having web-services
and software and thus, is not falling under section 3(k) and therefore the patent was granted.
Conclusion
The
duplicated and pirated software affects not only the copyright owner but all
software users. There is a need for stronger legal protection in the field of
software copyright and trademark. The primary protection for computer software
in India is found in the Copyrights Act, 1957, and the Patent Act, 1970. There
are only a handful of cases pertaining to the protection of software in India, most
of them with Microsoft Corporation as the aggrieved party. With the growth of the importance of software business, most of the companies want protection under
the legal regime to eliminate and stop software piracy and duplicity. Apart
from the protection guaranteed in the statutes and other forms of protection
discussed, there are several organizations formed to fight against software
infringements and piracy: BSA, SIIA, NIPO, NASSCOM, FICCI, Copyright
Enforcement Advisory Council (CEAC). BSA along with NASSCOM started a hotline
for reporting pirated software. NASSCOM has also suggested the establishment of
fast track courts to deal 12 with piracy issues. These fast track courts would
be vital in the area of criminal liability. The copyright board is entrusted
with providing justice through adjudication of disputes when necessary pertaining
to copyright registration, assignment of copyright, the grant of licenses, production, and publication of translations and works for certain specified purposes. Cases
can be heard in other miscellaneous matters instituted before it under the
Copyright Act, 1957.
The
BSA has also laid down certain suggestions for the Government. The Government
should:
a)
update their copyright laws to implement WIPO obligations;
b)
create strong enforcement mechanisms;
c)
train the officials to deal with new kinds of piracy;
d)
fourthly improve public awareness;
e)
set examples by using legitimate software only.
Enforcement
is the most essential factor for the successful implementation of the
legislation and thus, the focus should be laid on better enforcement mechanisms and
techniques. The introduction of stringent criminal liability and fast track courts can
say to be the right direction towards curbing piracy. Software piracy not only
generates a loss of revenue or a violation of IP rights but also a loss to the world
economy at large.
OA/22/2009/PT/DEL and Miscellaneous Petition No. 118/2012 in OA/22/2009/PT/DEL
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