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1. Software copyright is the application of copyright law to machine-readable software. Computer program are literary works under the definition in the Copyright Act.
2. “Computer Program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
3. Copyright is the more usual way of protecting software. On the plus side, copyright arises automatically (it does not need to be applied for) and lasts 70 years after the death of the author. This means there is nothing specific you need to do, for your software to have copyright protection.
4. Generally Computer software which does not have a technical effect is protected under copyright law.
5. For a copyright protection, computer software needs to be original and enough effort and skill must be put into impart it originality.
6. A program which only generates multiplication tables or algorithms may not suffice the degree of effort required for protection.
1. The work shall be mandatorily original and apart from that, the work should be first published in India, or
2. If the work is published outside India the author on the date of publication is citizen of India, or
3. 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 India.
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 fulfil the requirement for an invention which is provided under the Indian Patent Act in conformity with the provision of TRIPs, Berne Convention, and WIPO Copyright Treaty etc.
1. The Copyright Act protects the author's economic and moral rights in the copyrighted work as stated in section 14 and 57 respectively of the Copyright Act, 1957 including the rights in computer software/programmes.
2. In the case of computer software/programmes, the copyrights owner is permitted 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 which a author has a right to do and the user can use only with the permission of Author.
3. 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.
Software contracts, like many other transactions, are governed by the common law principal as embodied in the Indian Contract Act. Software Contract can protect the software of the Author for taking any action for its infringement.
In Tata Consultancy Services v. State of Andhra Pradesh:
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 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 non customized satisfies these attributes, the same would be goods.'
1. 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.
2. Civil remedies to copyright infringements are provided in Copyright Act, 1957 granting injunction (Authoritative warning or order) and damages for copyright infringement and criminal liability provisions as given in Copyright Act, 1957 wherein abetment of infringement is also unlawful and punishable with imprisonment of up to three years and a fine up to Rs. 2 Lacs.
3. 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.
4. 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.
5. 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 which gives the confidence to the Author to enhance more such software’s as the infringement is punished and development is protected.