Friday, 3 January 2014

Copyright for Computer Software


What is Copyright?


Section 14 of the Copyright Act, 1957, gives a  lengthy definition  of what Copyright  means. For the  purpose of brevity and easy understanding  the definition under the Act  is analysed as under:
1.         Copyright is a bundle of exclusive rights.
2.         Its given by the law
3.         Given to the creator of  literary, dramatic,  musical and artistic works.
4.         Exclusive right  to engage in and license others  to  reproduce the works in any  material form, to  make copies of  work to the public,  to perform the work in public, communicate the work to public, to make translation of the work or an adaptation of the work. 
Copyright in respect of Computer programmes.
Section 2(ffb) and Sec 2(ffc) of the Act define “computer” and “Computer program”. Copyright Act specifically  protects  Computer Programs.
Section 14(b) of the Copyright  Act defines what Copyright is with respect to Computer programs.
Another Section, being Section 40, which relates to  extending copyright to foreign works , may also have  relevance  due to the increasing access to the  Internet in the Country.
In relation to  copyright  of Computer Software, the right given to the author of the program are:
1.         to do any act as relates to the work being a literary, dramatic  or musical work . (Acts here indicate  acts like  reproduction of the work, issuing  copies of the  works to the public , perform etc.)
2.         to sell or give on hire  or offer for sale  or hire, any copy of the computer program, regardless of whether  such copy has been sold  or given on hire  on earlier occasion (This allows the commercial distribution of the work).
Object code and Source Code
Under the Copyright law Computer Software can be divided into  two parts:
1.   The Source Code :  This is the working part of the program. Source codes are entitled to copy right protection  in Indian under the Copyright Act, 1957, under Section 14(b).
2.    The Object Code :    This is the way  the software is presented or the way the software would look (perceived from the screen of the computer). Under the Copyright Act Sec 2(ffc), the definition of  Computer program is exhaustive  and hence  the object code also becomes eligible  for copy right protection.
Who is the Owner of the Copyright:
A.     Individual Programmer:  An individual author who write the program is the sole owner of the copyright in the program.
B.     Joint Programmes: A program developed by several individuals jointly,
      where the contribution of one author is not substantial from the
      contribution of the others, all the individuals are joint authors and hold the
      copyright in the program jointly.
C.     Contract of service as an employee: In case of programs made  under the
      contract of service as an employee, such employee, the employer will be
      the first owner  of the copyright unless there is an agreement to the
      contrary.
[Note: It is always advised that an deed of assignment  of the copyright  in the specified work  be assigned  by the employee to the employer vide an Assignment deed , which  shall be in writing, which shall specifically identify the work for which the assignment is sought for and which shall be duly signed by the employee].
D.     Contract of service as a contractor
In  case the program is written  by people who have been hired  and appointed as independent  contractors on contract  for service, such contractors shall have the  first right as owners to the copyright in the subject program unless  such copy right is expressely assigned by the contractor in favour of the person who taking the contractors’ service.

Assignment of Copyright

The owner of a copy right in an existing work or a future work can  either wholly or in part assign, to any person, the copyright vested in the subject work in the following manner:
A.   for the entire world, or specific country or territory;
B.   for the full term of the copy right  or part thereof;
C.   relating to all the right comprised in the copyright or  relating to part of
     the rights.
Why is Software easy to be   copied:
1.   Computer program is valuable. The economic value  adduced  to copyright of the program is substantial in view of the growing market size and the demand.
2.   Software or program is easily reproducible and  can be easily copied.
3.   Software or program can easily be converted from one computer language  to another
4.   Cost of copying  for most system is low.
5.   Even when direct copying is not possible, computer programmers can often reverse engineer the  program.
6.   Above all  the copier of the program  can copy  the subject  program without any loss in quality. Thus retaining a major portion of  its functionality.
How to protect the copyright in a program:
Different forms of Intellectual property like Copyrights, Trade secrets agreements, non disclosures,  licensing agreements and in some cases even patents serve  as protection.
Copyright for a the software or program can  be done by simply registering the subject work with the Registrar of the Copyrights, thus  substantiating that you are the first author of the subject work.
Registration with the registrar would be helpful in a infringement suit. The register of the registrar would be a prima facie evidence and the  extract of the Register, certified by the registrar would be  admissible in evidence .

Ashok Ram Kumar

Ashok Ram Kumar is the Senior partner at IP Markets and can be contacted at ram@ipmarkets.in