How to Copyright a Computer Programme In India

Published on 10 Feb 2018 by Tushar

Copyright is a form of intellectual property protection granted under Indian law to the creators of original works of authorship such as literary, artistic works etc which also includes 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.

How is computer defined for the purpose of copyright?

A computer includes an electronic or similar device having information processing capabilities.

What is the definition of a computer program?

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.

Computer Program Copyright is obtained in the form of 'Literary Works'

A ‘Literary work’ is something that can be copyrighted amongst other types of work done by artists, movie makers, singers etc. Hence Computer Programs are literary works, which can be copyrighted. The Definition of Literary Work which includes computer programs, tables and compilations including computer databases.

What are the rights given to owner of Copyright of Computer Programs?

Copyright, in relation to a computer program, means the exclusive right to do or authorize to do any of the following acts :

  1. Reproduction of the copyrighted program in any form
  2. Storage of copyrighted material in electronic form
  3. Issuing copies of the work to the public
  4. To make any cinematographic film or sound recording in respect of the work;
  5. To make a Translation or an Adaptation of the work and use the same for any of the other mentioned points herein.
  6. To sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer program. Commercial renting does not apply to computer programs where the program itself is not the essential object of the rental.

What is required for a Computer Program to gain protection under Copyright Law?

Originality

the work must not be copied from another work, but must be the original work of the author. Author, with regard to computer software, is the person who causes the work to be created.

Effort and Skill

Sufficient effort or skill has been spent to give it a new and original character. But, a computer program, which does no more than produce the multiplication tables or the alphabet, cannot lay claim to copyright protection. It is because the amount of skill needed for such an exercise is too insignificant.

First Publication

The computer program must be first published in India and if it is published outside India, then the author should be a citizen of India at the time of publication.

Unpublished work

As regards unpublished work, the author should be a citizen of India or domiciled in India at the date of the making of the work. The government of India passed the International Copyright Order, 1958 whereby any work first published in any country which is a member of the Berne Convention or the UCC (Universal Copyright Convention) will be accorded the same treatment as if it was first published in India.

What is the Time Period for the existence of copyright in India?

The term of copyright computer program which is in use and registered within the lifetime of the author is 60 years from the beginning of the calendar year following the year in which the author dies. In case of anonymous or pseudonymous works, the duration is 60 years from the calendar year following the year in which the work is first published.

Control over Copyright by Companies

If an employee in a company develops a program, would this employee 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.

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

The copyright in works created by third parties on commission does not automatically belong to 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.

How to protect Trade Secrets which are part of the computer program?

Once the copyright is registered, the work is open to public inspection. For this reason, it is advisable, 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 the subject matter of a protection against any person who wrongfully obtains and utilizes the said program.

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

When a work is published by authority of the copyright owner, 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 notice is optional. It is, however, a good idea to incorporate a copyright notice.

Infringement of Copyright and Legal Remedies for the Computer software

Section 51 defines infringement of copyright and states that a person infringes the copyright of another if he unauthorizedly commits any act which only the copyright holder has exclusive rights to do.

Remedies-

  1. Civil remedies to copyright infringements are- granting injunction and damages for copyright infringement; along with
  2. criminal liability provisions, wherein abetment of infringement is also unlawful and punishable by 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 by 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.

Section 62 of the Copyright Act, 1957 entitles a Plaintiff to file for a suit for an injunction against infringements within District Court of the jurisdiction where Plaintiff resides or carries on business or works for gain.

The recent trend shows that Indian Courts have accepted petitions against unknown Defendants or persons identifiable through their IP Addresses in internet law related litigation.

Popularly known as John Doe order in the US Courts, 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 the stage of filing.

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