by August 21, 2002 0 comments

Users are often held to ransom by unscrupulous developers who, having once developed an application, tries to prevent them from getting it replaced. What is the law here? 

The Indian Copyright Act, 1957 treats software as a literary work and protects the exact expression. It is important to note here that the idea itself is not protected, only the expression is.

Under Section 3(k) of the Patents (Second Amendment) Bill 1999, “a mathematical or a business method or a computer program or algorithms” is not a patentable invention. It appears that computer programs capable of bringing about a technical effect might be allowed, in pursuant to the recommendations made by the Joint Parliamentry Committee, which has recommended that the section reads as: “Section 3: The following does not constitute an invention within the meaning (k) a mathematical or a business method or a computer program per se or algorithms.”

On asking another developer to create software that does the same function, it must be noted that ‘reverse engineering’ is fairly common. Since only the expression or ‘form’ is protected by copyright, you can substantially modify the program, improve on it and even market it. 

However, keep the following points in mind: Indian copyright law protects a computer program as a work and prohibits copying of the same, be it literal or non-literal copying. Therefore, “infringement” will occur, even when the source code per se has not been a literal copy, but the structure, sequence and overall look and feel has been copied. 

This prohibition on non-literal copying came about because the courts came to recognize that a substantial amount of effort went in determining the structure, and not so much in the coding process. The look and feel of computer programs often involve much creativity and has greater commercial value than the program which implements the product.

Registration of copyright is not mandatory. However, registration is helpful in an infringement suit, since the Registers of Copyrights are prima facie evidence.

You can register computer programs as literary work, using Form IV-Application for Registration of Copyright, Statement of Particulars and Statement of Further Particulars, available at the Copyright Office. A sum of Rs 10 per work is to be remitted for registration of Copyright. The fees may be paid to the Registrar of Copyrights, Kasturba Gandhi Marg, New Delhi by postal order or bank draft or deposit into a Government Treasury or branch of the RBI or the SBI under the head of account: Major Head -XLVI- Miscellaneous, Minor Head “Naturali- zation, Passport and Copyright Fees.” The challan 
of the payment shall be sent to the authority concerned by pre-paid registered post. 

The Copyright Law requires the deposit of three complete copies of works. Depositing the entire work is better than just giving the identifying portions. Documentation is regarded as a separate work and hence must be registered separately.

Rodney D Ryder is a lawyer with Anand and Anand

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