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Published : October 11, 2011 | Author : bharat.charan
Category : Intellectual Property | Total Views : 11379 | Rating :

  
bharat.charan

 

An Overview of Indian Copyright Software

In India, the Intellectual Property Rights (IPR) of computer software is covered under the Copyright Law. Accordingly, the copyright of computer software is protected under the provisions of Indian Copyright Act 1957.

Computer program are literary works under the definition in the Copyright Act. A “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. Copyright for computer programs prohibits copying of program structure and design. The graphics, sounds, and appearance of a computer program also may be protected as an audiovisual work; as a result, a program can infringe even if no code was copied.

Just as a copyright came into being when the original lines of source code were written by the programmer, so another copyright comes into being for each addition or modification to the source code that shows sufficient originality. Because of this, a computer program generally is protected not by a single copyright but by a series of copyrights starting when it is first written and continuing through the last modification.

EULA

A software license agreement is a contract between the licensor and purchaser of the right to use software. Many form contracts are only contained in digital form, and only presented to a user as a click-through where the user must "accept". As the user may not see the agreement until after he or she has already purchased the software, these documents may be contracts of adhesion. These documents often call themselves end-user licensing agreements (EULA).

Source Code and Object Code
Although copyright comes into being with the writing of the source code, it is the object code which gives the actual instructions that control the computer when the program is being executed which is generally protected by copyright. In most instances, the source code is never revealed to the public, and thus remains protected as a trade secret even though millions and millions of copies of the program are distributed as object code.

The source code contained information that made it easier for a programmer to write or understand the program

Even though source code and object code are distinct, it is still useful to maintain the concept that the source code and the object code are just different forms of the same copyrighted work. The Copyright Office regards the source code and object code as equivalent for purposes of registration

Infringement of Copyrighted Software
Infringement of copyrighted software is called Software piracy. Software piracy is the reproduction, distribution or use of a software product without the expressed permission of its author. Software piracy is theft - stealing someone else's original idea and product. It comes in the following common forms:

End user piracy: End users (both home and corporate users) who are utilizing unlicensed software on their systems, or who have installed more copies than they are entitled to under their license agreements, e.g. a company with only one license installing the software on five PCs. This form of end user piracy is called under-licensing and is of grave concern to the Business Software Alliance (BSA).

Hard disk loading: Computer dealers pre-installing illegal copies of software onto PCs prior to sale. Some dealers use one legally acquired copy but install it on many machines. These PCs are usually sold without any form of licensing documentation or disks.

Software counterfeiting: The illegal duplication and sale of software in a form that is almost identical to the genuine product.

Internet piracy: The latest and fastest growing form of software piracy. Software programs are placed by third parties on the Internet for downloads free of charge or for a fee. Pirates tend also to use the Internet as a means of advertising to solicit sales.

Protection of Copyright Software
Generally, copyright laws protect the form of expression of an idea, but not the idea itself. With respect to software, this typically means that the computer program, in both human-readable i.e. Source Code and machine-executable form i.e. Object Code, and the related manuals are eligible for copyright protection, but the methods and algorithms within a program are not protected expression. Source code and object code are protected against literal copying.

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. Therefore, work has to be recorded into 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

Remedies for Infringement Of Copyright Software
1. Temporary and permanent injunctions
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 attorneys' fees

International Copyright
Copyright restrictions also apply to works created or published in a foreign country. This protection is a result of international treaty obligations, under which signatory nations have agreed to give citizens of other member countries the same level of copyright protection that they give to their own citizens.
Some of these conventions which protect the Copyright work are as follow:

Berne Convention
Each nation that signs the Berne Convention, 1886 agreement must guarantee to authors of other member countries the same rights of copyright protection that it grants to its own nationals. It also requires that signatory nations must enact copyright laws that adhere to certain uniform standards, particularly in matters concerning copyright durations, the kinds of works that are protected, the moral rights of authors, along with the abandonment of requirements for registrations, deposits, and the attachment of copyright notices.

Universal Copyright Convention
It was developed by the United Nations at Geneva in 1952 as an alternative to the Berne Convention. The UCC (Universal Copyright Convention) was much less stringent in the requirements that it dictated about the copyright laws its member nations must pass. The USA ratified the Universal Copyright Convention in 1972.

International Copyright Order
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. The registration of copyright is not compulsory in India but registration offers better protection to the author in cases of infringement of copyright.

Advantages of Registration Of Copyright
1. Registration establishes a public record of the copyright claim.
2.Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin where as in India it is not required.
3. If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
4. If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
5. Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

Registration Procedures for Filing Copyright
An application for copyright registration contains three essential elements: a completed application form, a nonrefundable filing fee, and a nonrefundable deposit—that is, a copy or copies of the work being registered and “deposited” with the Copyright Office.

A copyright registration is effective on the date the Copyright Office receives all required elements in acceptable form, regardless of how long it takes to process the application and mail the certificate of registration. The time needed to process applications varies depending on the amount of material the office is receiving and the method of application.

Option for registering copyright software
1. Online Registration
2. Registration with Fill-In Form CO (copyright office)
3. Registration with Paper Forms

Requirements for Registration Of Copyright Software
Computer Programs without Trade Secrets
1. For published or unpublished computer programs, send one copy of identifying portions of the program (first 25 and last 25 pages of source code) reproduced in a form visually perceptible without the aid of a machine or device, either on paper or in microform, together with the page or equivalent unit containing the copyright notice.

2. For a program less than 50 pages in length, send a visually perceptible copy of the entire source code.

3.Where an applicant is unable or unwilling to deposit source code, he/she must state in writing that the work as deposited in object code contains copyrightable authorship. The Office will then register the work under its rule of doubt since it has not determined the existence of copyrightable authorship.

4.When a computer program is embodied in a CD-ROM, ordinarily the entire CD-ROM package must be mailed to the Copyright Office, including a complete copy of any accompanying operating software and instructional manual. If registration is sought for the computer program, the deposit should also include a printout of the first 25 and last 25 pages of source code for the program.

Computer Programs Containing Trade Secrets
1. First 25 and last 25 pages of source code with portions containing trade secrets blocked out; or
2. First 10 and last 10 pages of source code alone, with no blocked out portions; or
3. First 25 and last 25 pages of object code plus any 10 or more consecutive pages of source code, with no blocked-out portions; or
4. For programs 50 pages or less in length, entire source code with trade secret portions blocked out.

Revised Computer Programs
1. If the revisions are present in the first 25 and last 25 pages, any one of the four options above, as appropriate; or
2. If the revisions are not present in the first 25 and the last 25 pages:

# 20 pages of source code containing the revisions with no blocked out portions; or
# any 50 pages of source code containing the revisions with some portions blocked out.

Whenever Portions Of Code Are Blocked Out, The Following Requirements Must Be Met:
the blocked out portions must be proportionately less than the material remaining; and
the visible portion must represent an appreciable amount of original computer code.

Effective Date of Registration
A copyright registration is effective on the date the Copyright Office receives all the required elements in acceptable form. The time the Copyright Office requires to process an application varies, depending on the amount of material the Office is receiving.

Copyright Software Litigation
Only competent court of jurisdiction shall entertain Software litigation. In case of US, the Federal courts have exclusive jurisdiction over copyright claims.

Place of filing the complaint relating to infringement of software copyright would be the place where the defendant is found or where infringing acts occur
No complaint shall be entertained after the expiry of the three years from the day when action has accrued according to the Statute of limitations on civil copyright claims.

Complainant or plaintiff must own the copyrights or be an exclusive licensee to have the right to use the Copyright. Such exclusive license must be given by the owner of the copyright or the individual who created the work or assignee of the true owner.

And the litigation will only be initiated if above all conditions i.e. Registration and Submissions etc. will be carried down as per the requirement.

Authors contact info - articles The  author can be reached at: bharatcharan.ail@legalserviceindia.com




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Article Comments

Posted by sumitajames on April 10, 2012
i want to get my software copyrighted

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