Computer
Software and copyright.
Computer
software is valuable, but easy to copy, pirate and crack.
Hence
we need to look at what kind of protection the law provides
against the unauthorised copying and against piracy.
We
will discuss the provisions of The Copyright Act 1957 as it
applies to computer programs.
What is Copyright?
Copyright
is a bundle of rights given by the law to creators of literary,
dramatic, musical and artistic works and producers of cinematograph
films and sound recordings.
Copyright
in respect of computer program is:
U/S14"copyright" means the exclusive right subject to the provisions of this
Act, to do or authorise the doing of any of the following acts
in respect of a work or any substantial part thereof, namely
:- in the case of a computer programme-
- to reproduce the work in any material form including
the storing of it in any medium by electronic means,
- to issue copies of the work to the public not being
copies already in circulation,
- to perform the work in public, or communicate it to
the public,
- to make any cinematograph film or sound recording in
respect of the work,
- to make any translation of the work
- to make any adaptation of the work
- to do, in relation to a translation or an adaptation
of the work, any of the acts specified in relation to
the work in sub clauses (I) to (vi)
viii
to sell or give on hire, or offer for sale or hire, any copy
of the computer programme, regardless of whether such copy has
been sold or given on hire on earlier occasions
U/S2(ffc) "computer programme" means set of instructions
expressed in words, codes, schemes or in any other form, including
a machine readable medium, capable of causing a computer to
perform a particular task or achieve a particular results.
Owner
of the Copyright
Ø An
individual author who writes a programme is the owner of copyright.
A programme developed by several individuals, in which the contribution
of one author is not distinct from the contribution of the others,
all the individuals are joint authors and own the copyright
jointly.
Ø Under the Act "author means"-
In relation to any literary, dramatic, musical or artistic
work which is computer-generated, the person who causes the
work to be created.
Ø Contract of service
In
case of programme made under a contract of service as an employee
then the employer will be the first owner of the copyright unless
there is any agreement to the contrary.
Ø Contract for service
Programmes
written by people who have been appointed as independent contractor
on contract for service will have the first right as owners
unless such copyright is expressly assigned to the party taking
their services.
How to protect your
copyright.
Copyright
subsists in all original published or unpublished compute programmes,
The
copyright in computer programmes made within the lifetime of
the author until sixty years from the year in which the author
dies.
It
is not compulsory to register the copyright in India but it
can be a good idea to register. But one needs to take proper
professional advise before registering.
Registration
with the registrar of Copyright is helpful in an infringement
suit.
copyright notice.
As
per the Berne Convention(to which India is a signatory) for
protection of literary and artistic works,use of copyright notice
is optional. It is a good idea to incorporate a copyright notice.
A
Copyright notice consists of the following :
- The symbol © (letter "c" in
a circle) or the word "Copyright",
- The copyright owners name, and
- The year of first publication.
For
example below this article the author can write : © Zarana Khona
2000.
The
copyright notice should be placed on computer programme copies
in such a way as to give reasonable notice of the owner of the
copyright.
You
can also put the copyright notice on your web site in the similar
fashion.
How
to register a programme with the Registrar of Copyright
Copyright
Office regards computer programmes as literary works for which
one has to file the follwing duly completed along with requisite
fees:
1. Form IV-Application for Registration of Copyrights,
2. Statement of Particulars,
3. Statement of Further Particulars ,
4. Three
complete copies of the works (one has to be very cautious here
to submit appropriate works after taking professional help as
giving away whole of the source code can be harmful as after
registration your application is open to public for inspection.)
Assignment
of the Copyright
U/S 18 The owner of the copyright in an existing
work or prospective owner of the copyright in a future 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.
U/S 19. Mode of assignment –(1) No assignment
of the copyright in any work shall be valid unless it is in
writing signed by the assignor or his duly authorised agent.
(2)The assignment
of copyright in work shall identify such work, and shall specify
the rights assigned and the duration and territorial extent
of such assignment.
(3) The assignment
of copyright in any work shall also specify the amount of royalty
payable, if any,
(4) Where the assignee
does not exercise the rights assigned to him under any of the
other sub sections of this section within a period of one year
from the date of assignment, the assignment in respect of such
rights shall be deemed to have lapsed after the expiry of the
said period unless otherwise specified in the assignment.
(5) If the period
of assignment is not stated, it shall be deemed to be five years
from the date of assignment.
(6) If the territorial
extent of assignment of the rights is not specified, it shall
be presumed to extend within India.
Infringement of Copyright
Copyright
in work is considered to be infringed-
- 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.
- when any person-
- makes for sales or hire, or sells or
lets for hire, or by way of trade displays or offers for
sales 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.
- Imports into India any infringing copies
of the work for the private and domestic use of the importer.
Remedies
for copyright infringement
Courts
are empowered to grant the following relief :-
- Temporary and permanent injunctions
- Impounding and destruction of all infringing
copies, including masters
- Imprisonment of the accused or imposition
of fine or both.
- Actual monetary damages plus the infringor's
profits
U/S
64 of the Copyright Act, 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.
U/S
66 of the Copyright Act, The Court trying any offence, may, whether
the alleged offender is convicted or not, order that all copies
of the work in the possession of the alleged offender, which
appear to be infringing copies be delivered up to the owner
of copyright.
