by December 31, 2001 0 comments

In India you can protect software that you’ve created only by copyright, and not by patents as in the US. It is classified as a ‘literary work’ instead of an ‘invention’, which performs a mechanical function. This is the problem area as far as Indian substantive law is concerned. We follow the European model that affords copyright protection to software unlike patent protection that is granted in the US.

In this article you’ll find answers to some such common issues on copyrights.

If you make the software that you’ve developed available for free or commercially, and another company claims that it has actually been created by it, what can you do?
This would depend on the evidence to prove the originality of the work or creation. Registration of copyright provides for authentic verification. If you’ve registered your work with the Registrar of Copyright, it would strongly tilt the balance in your favor.

How does a copyright protect your work?
If you’ve created ‘original works of authorship’, copyright gives you the exclusive right to:

  • Make copies of the work (reproduction right)
  • Prepare derivative works based upon the work (adaptation right)
  • Distribute copies of the work publicly by sale, rental, lease, or lending (distribution right)
  • Perform the work publicly (public performance right)
  • Display the work publicly (public display right)

When is a copyright infringed?
With some exceptions, a copyright is infringed if someone performs any act described above without the permission of the
copyright owner.

Is a copyright recognized worldwide?
Copyright is recognized virtually worldwide under the Berne Convention and the applicable law of its member nations.

How can you register a copyright?
For a work to qualify for a copyright, it must be original and it must be fixed in a tangible form. The originality requirement is minimal; a work need not be ‘novel’ within the meaning of patent law in order to qualify as original. Examples of works fixed in a tangible form are printed novels, phonograph records, multimedia CDs, films, and sheet music.

Does the software that you develop in your free time (even though you are employed elsewhere) with your own resources belong to you? Can you copyright it?

The software or basic work product developed in free time and not in the normal course of employment ‘belongs’ to or is the property of the individual, even though you are employed by a company. This is provided that you don’t use company resources.

In this case, not only can you copyright it, but you must do so! At the same time, you must ensure that in the ‘work for hire’ contract that you sign with your employer, there is no room for manipulation.

The registration of copyright is not compulsory either for acquiring copyright or for enforcing copyright by infringement suit. You can, however, register copyright with any one of the zonal offices of the Copyright Office for a nominal sum of few hundred rupees. The entries made in the register maintained by the Office, or extracts therefrom, will be admissible as evidence in all courts without further proof or production of original.

What is the Indian copyright law regarding software source code?
In India, software source codes and object codes are subject to copyright as ‘literary works’. Software, like any other work, must meet the requirements of originality and fixation to qualify for copyright protection. The ‘fixation’ requirement requires that the source code be printed on paper, although storage on disk is also sufficient. As with any other copyright, what is being protected by software copyright is the particular expression of the idea or process it conveys, not the idea or process itself.

Who does the copyright product belong to?
Under normal circumstances, the author/creator of the work owns the work, unless of course, the work is made in the course of employment. The general principle is that if a person is employed to do a job and is paid for his services the product of his labour, subject to any agreement to the contrary, belongs to the employer. The copyright in a work done by an employee in his own time and not in the course of employment belongs to him.

Rodney D Ryder

Patent vs copyright

A printed novel is clearly subject to copyright protection because it is a literary work represented by a particular arrangement of words on printed pages. A steering wheel in a car or a new kind of electrical generator, on the other hand, are cases of patentable inventions. Given these examples, which is software more like: a written work or a machine? The answer is that it shares much in common with both. A written description of a steering wheel is obviously not a steering wheel. By contrast, software is both a written description of a process and, in a sense, the process itself. This presents problems for copyright and patent law. Unfortunately patent protection is not available for software. The only recourse is copyright protection, which does not protect an idea, but only the form in which it is expressed. For hardware, patents are a definite option.

Another important difference between copyright and patent protection relevant in the field of software patents, and which explains in part why software patents have come to be viewed as particularly desirable, is that copyright protection generally does not protect the owner from independent creation or reverse engineering. In other words, to prove a copyright violation the copyright owner must prove that the alleged infringer had access to and copied the copyrighted material. For example, imagine a journalist who covers a sporting event and writes a newspaper article describing it. Another journalist covers the same event
(ie, uses the same idea) and writes an article the next day using almost exactly the same language as the first article. Because the second journalist independently created the second article without copying the first article, no copyright violation has occurred.

Computer software and hardware companies have taken advantage of the copyright law’s lack of protection against independent creation to ‘clone’ computer products through reverse engineering. Reverse engineering is the process of recreating a device by observing how it functions, and using this information to create a device which is its functional equivalent.

Patent law eliminates this loophole by providing protection irrespective of whether the invention was copied. Any use of the patented device which is prohibited by the patent laws and which is unauthorized by the patent owner is infringement, even if the infringing device was created without any knowledge of the original device. A piece of software patented cannot be reverse-engineered and sold by another company, because patent rights prevent anyone other than the patent holder from exercising the patent holder’s exclusive rights without authorization. As a result of the stronger protection provided by patent law, patent protection is significantly harder and more expensive to obtain than copyright protection.

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