Articles

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:

  1. Individual Programmer: An individual author who write the program is the sole owner of the copyright in the program.
  2. 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.
  3. 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].

  4. 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:

  1. for the entire world, or specific country or territory;
  2. for the full term of the copy right or part thereof;
  3. 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