Software Copyright - Software Registration laws in India

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What is Copyright?

Copyright is a form of intellectual property protection granted under Indian law to the creators of original works of authorship such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form, including a machine readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings.

Is it compulsory for a program to be published to receive Copyright protection?

No. Copyright applies to both published and unpublished works.

What are the rights available through Copyright protection?

Copyright owners have the exclusive right to do or authorise the doing of any of the following in respect of a work or any substantial part thereof:

1. In case of a literary, dramatic or musical work not being a computer program:
   
   1. To reproduce the work in any material form including the storing of it in any medium by electronic means;
   2. To issue copies of the work to the public not being copies already in publication;
   3. To perform the work in public, or communicate it to the public;
   4. To make any cinematographic film or sound recording in respect of the work;
   5. To make any translation of the work;
   6. To make any adaptation of the work;
   7. To do, in relation to a translation or adaptation of the work, any of the acts specified in relation to the work in sub clauses (i) to (vi)
2. In the case of a computer program:
   
   1. To do any of the acts specified in para (A) above.
   2. To sell or give on hire, or offer for sale or hire a copy of the computer program, regardless of whether such copy has been sold or given on hire on earlier occasions. It may be noted that Copyright confers a number of rights, some or all of which can be granted to others either exclusively or non-exclusively.

 

What are the exceptions to these rights?

So far as it relates to computer programs, the making of copies or adaptation of a computer program by the lawful possessor of a copy of such computer program, from such a copy:

• In order to utilize the computer program for the purpose for which it was supplied; or
• To make backup copies purely as a temporary protection against loss, destruction or damage in order only to utilise the computer program for the purpose for which it was supplied; shall not constitute an infringement of copyright.

Is this exception applicable to all program users?

No. These exceptions apply only when a computer program is sold (title to the program copy passes); they do not apply when a program copy is licensed as the licensee may waive the defences. A licensee has only those rights that are specified in the license agreement.

Can a licensee of a computer program copy, sell or rent the program?
Unless authorised by the Copyright owner, a computer program licensee does not have the right to lend or otherwise transfer program copy.

How should I obtain Copyright protection for my company's software?

Copyright subsists in all original published or unpublished literary works; 'literary work' includes computer programs, tables and compilations including computer databases in any tangible form. You would therefore, have to do nothing but to record the program on some tangible medium to get copyright protection. Copyright protection, is automatic from the moment the work is embodied in some medium like ROM, Magnetic Tape, diskette or paper.

Is it true that I do not have to register my program with the Copyright Office to get Copyright protection?

As per the Indian law, you do not necessarily have to register with the Copyright Office to get Copyright protection. Registration of any program is however a good idea.

In what way would registration with the Copyright Office be helpful?

Registration with the Copyright office is helpful in an infringement suit. As per the Copyright Act, the Registers of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts there from certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts without proof or production of the original.

What is the deposit requirement for Copyright registration purposes?

The Copyright Law requires the deposit of three complete copies of works whether published or unpublished. For works in machine-readable form only, identifying portions rather than complete works may be deposited. In the case of computer programs, it is helpful (or usual) to deposit the first and last few pages (say first 25 pages and the last 25 pages) of source code plus the page containing the Copyright notice, if included. However, depositing the entire work has its own advantage and should be considered.

Is it necessary to deposit accompanying documents of the computer program for which Copyright registration is being sought?

Documentation, which normally accompanies the program, is regarded as separate work and for this reason if the same has to be registered, it must be separately registered and not combined with the computer program in a single application.

There are many occasions when the computer programs are updated or enhanced in the form of a new version. Do these updates / enhancements / new versions need to be registered? If so, what needs to be deposited? As mentioned earlier, Copyright protection is automatic from the time the work is created and hence it is not necessary to file new registration for updates and enhancements. However, it is advisable to register the updates or enhancements for the same reason the original version was registered. This would mean making of another deposit. As a practical rule, it is advisable to register those updates and enhancements that substantially differ from the earlier version. If the revision takes place throughout the program, then the first and last 25 pages of source code plus the page containing the Copyright notice is adequate for deposit. If the revision does not take place throughout the program, then any 50 pages representative of revised material may be deposited.

Is there a possibility of divulging the trade secrets through deposit of source code?

Although the Copyright Office has procedures designed to protect trade secrets but once the Copyright is registered, the work is open to public inspection. For this reason, it advisable, as aforesaid, only to file a small extract of the computer program rather than the full program itself. It is important however to know that the part of the computer program which is not being filed would remain the trade secret of the owner and can be subject matter of a protection against any person who wrongfully obtains and utilises the said program.

In order to further ensure that the trade secrets are protected, is depositing of computer program in object code permissible?

By the recent amendments in the Copyright Act, a "Computer program" means a set of instructions expressed in words, codes, schemes or any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. The amendment, although enlarges the meaning of a computer program, it is still not very clear as to whether it includes both object code and source code. However, keeping in mind the proclaimed object of the amendment, presumably the benefit of the Copyright Act will be available to both. As per experts' opinion, since it is easier to determine from source code whether the deposit represents the copyrightable material, deposit of object code may be possible but registration presumably would be accepted pending assurance that the code does represent copyrightable material. Procedures for these do not exist at present with the Copyright Office.

In some of the programs, the screen could be the most commercially significant aspect. Is it necessary to register the program screen separately from the underlying code?

Generally, all copyrightable expression embodied in a computer program; including screen displays, can be protected. However, unlike a computer program, which is a literary work, screen displays are artistic works and cannot therefore be registered in the same application as that covering the computer program. A separate application giving graphic representations of all copyrightable elements of the screen display is necessary.

What notice needs to be put on computer program copies to seek Copyright protection?

When authority of the Copyright owner publishes a work, a notice of Copyright may be placed on publicly distributed copies. As per the Berne Convention for protection of literary and artistic works, to which India is a signatory, use of Copyright is optional. It is however, a good idea to incorporate a Copyright notice.

How is a Copyright notice displayed?

A Copyright notice consists of the following:

• The symbol c (letter c in a circle) or the word Copyright
• The year of first publication, and
• The copyright owners name.

An example of notice: © 2000-2013 Legal Service India.

What is an ideal place to display a Copyright notice?

The Copyright notice should be placed on computer program copies in such a way as to give reasonable notice of the claimant of Copyright. As an example, the notice could be placed on the title page of program's written documentation and at the user terminal at sign on.

Failure to give notice of Copyright does not destroy Copyright protection provided:

• The notice has been omitted from a relatively few publicly distributed copies;
• Copyright registration is made within six years after first publication without a notice and a reasonable effort is made to add notice to copies already publicly distributed, or
• The notice was omitted in violation of an express agreement, in writing, by which the Copyright owner authorized another to distribute the program publicly.
• As already brought out earlier, as per the Berne convention, use of Copyright notice is optional.

Who owns the Copyright in a computer program?

An individual author who writes a program initially is the owner of Copyright. A program developed by several individuals, in which the contribution of one author is not distinct from the contribution of the others i.e. a work of joint authorship, all the individuals are joint authors and own the Copyright jointly.

If an employee/employees in a company develop a program, do they own the Copyright?

No. In the case of a program made in the course of author's employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the Copyright.

Is there some special registration to claim Copyright protection for programs written by employees?

No, but the employer should be listed as the 'author' in Form IV (Application for registration of Copyright) and Statement of Particulars in the forms available with Registrar of copyrights. For this purpose, information at serials 7, 11, 12 and 13 in the Statement of Particulars should be carefully filled.

For Copyright purposes, how is an 'employee' defined?

For the purpose of ascertaining whether a hired party is an 'employee' or an independent third party contractor, one has to consider that the hiring party has the right to control the means and the manner by which work is created.

Some of the factors to determine if controls exist are:

• Where the programming is performed
• Whose equipment is used
• The method of remuneration
• The duration of relationship between the parties
• Whether the commissioning party has the right to assign additional projects
• Who provides the benefits etc.
• Also note that no single factor will be determinative.

 

If an independent third party develops a program for a company, who owns the Copyright?

Works created by third parties on commission do not automatically vest the Copyright in the commissioning party. If the third party is an independent contractor, it is essential for the commissioning party to obtain the Copyright through a written deed of assignment. It is a common misconception that the Copyright automatically belongs to the commissioning party. Thus it is only where the developer is an employee creating the work under a contract of service that the rights belong to the employer.

What is the rule for the transfer of Copyright right?

The owner of the Copyright in an existing work or prospective owner of the Copyright in a future work may assign to any person the Copyright, either wholly or partially in the following manner:

1. For the entire world or for a specific country or territory; or
2. For the full term of copyright or part thereof; or
3. Relating to all the rights comprising the Copyright or only a part of such rights.

What is the mode of assignment?

Assignment is not valid till it is in writing, signed by the assigner or by his authorized agent. The assignment should identify the work and specify the rights assigned, the duration and territorial extent of the assignment. The assignment must specify the royalty payable, if any.

Is it necessary for transfers of Copyright rights to be registered with Copyright Office?

There are no special forms for the transfer of Copyright rights. However, these details need to be recorded while registering Copyright at serial 11 of Statement of Particulars. The rules regarding transfers are complicated and should be discussed with an attorney.

How long does the Copyright protection last?

For software the protection last for sixty years.

How is Copyright infringed?

Copyright in work is considered to be infringed -
A. When any person without a license granted by the owner of the Copyright or the Registrar of Copyrights or in contravention of the conditions of a license so granted or of any conditions imposed by a competent authority under Copyright act -

does anything, the exclusive right to do which is, by Copyright act, conferred upon the owner of Copyright, or permits for profit any place to be used for the communication of the work to public where such communication constitutes an infringement of the Copyright in the work.

B. when any person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the Copyright, or by way of trade exhibits in public, any infringing copies of the work.

It is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure is sufficient to indicate that it is a copy.

Piracy in an alleged infringing work may be detected by making a careful examination of it to see whether any of the deviations and mistakes, which the licence permits, in the original have been reproduced into alleged infringing copy.

What remedies exist for Copyright infringement?

Courts are empowered to grant the following relief:

1. Temporary and permanent injunction
2. Impounding and destruction of all infringing copies, including masters
3. Actual monetary damages plus the infringers' profits
4. Statutory damages
5. Court costs and reasonable Lawyers' fees.

What are the powers of Copyright Law enforcement authorities?

For effective implementation of Copyright Act, the response of enforcement authorities to cases of infringement needs to be swift. Under Section 64 of the Copyright Act, 1957, any police officer, not below the rank of a sub-inspector, may if he is satisfied that an offence in respect of Copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found and produce them before a magistrate as soon as practicable.

What are the actions that would facilitate action by enforcement authorities?

On receipt of any complaint regarding infringement of Copyright Act, all possible details including the name and address of the complainant should be noted.

During the search at the premise of the offender, provisions of the Copyright Law should be borne in mind and a comprehensive inventory of infringing materials should be maintained.
It is very important that care is taken to ensure that evidence is not destroyed accidentally.
All seized material should be produced before the court.

What is done to the infringing copies seized during a raid by enforcement authorities?

Under Section 66 of the Copyright Act, the Court trying any offence, (whether the alleged offender is convicted or not) may order that all copies of the work in the possession of the alleged offender, which appear to be infringing copies, be delivered to the owner of Copyright.

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