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COPYRIGHT PROTECTION AND INFORMATION TECHNOLOGY: AN INDIAN PERSPECTIVE
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COPYRIGHT PROTECTION AND INFORMATION TECHNOLOGY: AN INDIAN
PERSPECTIVE
AUTHORED
BY - DR. M. VIDHYALAKSHMI,
Assistant
Professor,
Chennai
Dr.Ambedkar Govt. Law College
Pattaraiperumbudur, Tiruvallur[1].
INTRODUCTION:
“Property means the highest right a
man can have to anything, being that right which one has to lands or tenements,
goods or chattels which does not depend on another’s courtesy; it includes
ownership, estates and interests in corporeal things, and also rights such as
trademarks, copyrights, patents and even rights in personam capable of transfer
or transmission such as debts, and signifies a beneficial right to or a thing
considered as having a money value, especially with transfer of succession and
to their capacity of being injured”.[2]
The modern IPR now provides a range
of distinct legal platforms for the protection of the fruits of human
creativity that span from innovation in technical fields, products, services,
literary art works, performance, computer programs, etc. It should be
appreciated that each of these instruments is governed by a set of laws with
frameworks that offer varying degrees of protection, rights, obligations,
enforcement procedures, etc.[3] One such right is the Copyright under the Intellectual
rights. Copyright is a right given against the coping of defined types of
cultural, informational and entertainment productions. Traditional histories of
copyright provide adequate descriptions of the origin and evolution of
copyright but lack explanation for its emergencies and functions. Different
cultural attitudes, social organization and legal conceptions may explain why
copyright in essence emerged as an outgrowth of the privatization of government
censorship in 16th century in England, and the recent arrival of the
printing press was if anything energizing to writers[4].
In the 21st century, there
have been significant developments in the way, digital entertainment
technologies have been deployed towards improving our lifestyles and the manner
we look. From the mobile phones to digital multiplexes and from Direct to Home
(DTH) broadcasting to digital visual effects the digital entertainment
capabilities built over the years. Modern management of science and technology
has established formal processes for innovations, value creation and sharing of
knowledge within communities for its rapid realization in the market place.
Enhanced diffusion of knowledge has aided the rate of growth of new ideas and
applications. Formal frameworks has been set up to grant recognition to the
innovator b protecting his innovations via instruments of Intellectual Property
Rights (IPR) Rules, conditions for legal use of the protected innovations have
been set up and deterrents established to discourage copying. The communication
and dissemination resources available on the internet and the ease of
extracting and using them lure man online users to resort to the easy path of
piracy. This trend of piracy may increase in the present era of Internet
technology though Copyright law protects material sent over the Internet or
stored on web servers in the same way, the material is protected in other
media.
After the advent of Internet most of
the corporate Intellectual Property is held in the digital form as it provides
affordable access of all the IPR resources to the public at large. However,
Internet has also made infringement of IPR, in particular coping of copyright
material easy and simple. In the course of this epoch making generation, the
world has witnessed the growing importance of affairs relating to the computer.
The most essential feature of the computer is that it accumulates comprehensive
data of both general and confidential nature, which can be viewed through the
Internet from a country across the world. The Internet has now been universally
accepted and acknowledged as a medium of knowledge, business and communication
and it is now the preferred mode of interstate correspondence. The developments
in this particular field have led to an increase in the standard of living and
prosperity of the national and international society.
FUSION OF INTELLECTUAL PROPERTY AND INFORMATION TECHNOLOGY:
Intellectual property per se has
always existed, but it was recognized only after people came to know its
importance. With the advent of Information Technology in particular, people
started realizing the significance of protecting the different aspects of
information generally recognized as intellectual property in computers.
Intellectual creativity is the result of combination of different ideas. Such
combination of ideas has also led to the growth of Information Technology,
which has necessitated the protection of these technological aspects of human
life. Copyrights and trademarks are the key issues of Intellectual property,
which need to be tackled keeping in mind the technological progress of recent
years. There has been a steady increase in matters related to copyright and
trademark disputes in the field of computers. Every country is trying to
resolve such disputes through its intellectual property law/law regime.
BASIC CONCEPT AND NATURE OF INTELLECTUAL PROPERTY:
Intellectual property is a business
asset that offers a firm a competitive advantage over others. It very broadly
includes the legal rights that result from intellectual activity in industrial,
scientific, literary and artistic fields. Intellectual property has some
features in common with personal property. It is described as property because
it can be purchased, sold, mortgaged or licensed in a somewhat similar manner
to personal property. However intellectual property is intangible in nature
because of the difficult of identifying and defining its physical
characteristics. Intellectual property is nevertheless something that can be
owned and dealt with. Not only statutory forms of intellectual property but
even common law forms have been recognized as producing form of property
rights.[5]
The subject matter of intellectual
property is very wide and includes literary and artistic works, films, computer
programs inventions, designs and marks used by the traders for their goods and
services. The Convention establishing the World Intellectual Property
Organization (WIPO),[6]
concluded in Stockholm on Jul 14, 1967. Intellectual Property law is concerned
with the legal rights associated with innovative and creative efforts or
commercial reputation and goodwill. This law deals with creative ideas and
expressions of the human mind that have commercial value and receive the legal
protection of a property right. The major legal mechanisms for protecting
intellectual property rights are copyright, patent and trademark statutes.
Intellectual property rights enable owners to decide who may access and use
their property and to protect it from unauthorized use. However every right has
a reciprocal and associated duty. The various rights concerning intellectual
property include the right to do certain things such as making copies of a work
of a copyright, adapting an artistic work for public display, manufacturing
products with the patented machine or assigning the registered trademark for
monetary benefit.[7]
GROWTH OF INTELLECTUAL PROPERTY IN COMPUTERS:
The world of Intellectual property
prior to the invention of the computer was exhaustive and easily traceable.
With the advent of computers and internet, the scope of intellectual property
has increased in multiples. It is the field of the intellectual property which
has made, in itself, a drastic change in emergence of computers. In every
aspect of the Information Technology, we find some of the important features of
Intellectual Property. In dealing with computers specifically, we find that
computer programs are protected under the copyright of Intellectual Property.
The evolution of World Wide Web, has led to the registration of a large number
of domain names, which are a kind of trademark property. Trademarks and
copyrights thus play a significant role in the world of computers and Internet.
The various new software made by different software developers are also protected
as patentable inventions. Thus we find that intellectual property is widely
interwoven or interconnected with this new technology.[8]
SOFTWARE CONTRACTS:
Software contracts, like many other
transactions, are governed by the common law principle as embodied in the
Indian Contract Act[9].
Contract can be in the nature of Sale or Assignment/ License. If the computer
software is considered as a 'good', the Sale of Goods Act, 1930 will have
relevance in the formation and execution of the sale contract. Section 2(7) of
the Sale of Goods Act, 1930 defines 'good' as 'every kind of movable property
other than actionable claims and money, and includes stock and shares, growing,
crops grass...' This definition of goods includes all types of movable
properties, whether tangible or intangible.[10]
In Tata Consultancy Services
v. State of Andhra Pradesh[11],
the Supreme Court had considered that the Computer Software was an Intellectual
Property, whether it is conveyed in diskettes, floppy, magnetic tapes or CD
ROMs, whether canned (Shrink-wrapped) or uncanned (customized), whether it
comes as part of computer or independently , whether it is branded or
unbranded, tangible or intangible; it is a commodity capable of being
transmitted, transferred, delivered, stored , processed , etc. and therefore as
a 'good' liable to sales tax. The court stated that, 'it would become goods
provided it has the attributes thereof having regards to (a) its ability; (b)
capable of being bought and sold; and (c) capable of being transmitted, transferred,
delivered, stored and possessed. If a software whether customized or
non-customized satisfies these attributes, the same would be goods.'
COPYRIGHT:
With new technology and an increase
in the importance of Intellectual Property, it is necessary to know more about
copyright, computer programs and computer softwares, computer databases, and
various programs in cyber space. Several countries have modified their existing
copyright law and included computer programs within its definition of literary works.
Many have assumed computer software to be in writing and have thus protected
them under the umbrella of copyright. In computer software, ideas are expressed
in the form of writing and broadly speaking, writing includes any form of
notation or code, regardless of the method by which, and it is expressed. Apart
from computer programs and computer databases, there may also exist other
literary and musical or artistic works on the internet that can be protected
under copyright. Copyright in computers mainly gives two forms of rights:
i.
The
economic right i.e. the right to control the copying of ideas expressed through
computers.
ii.
The
moral right i.e. the right to commercially exploit one’s own ideas expressed
through computers.
A copyright is an intangible property
right granted to an owner of a literary, dramatic or artistic production of a
specified type. This specified type may include works like books, records,
films art works, architecture, music videos, scripts and computer software. The
two basic and important things in copyright are that the work is not copied and
is the original work of the author. Copyright is a right, which a person
acquires in a work, as a result of his intellectual labour.[12]
Copyright safeguards specific expressions of ideas and notions. The primary
function of copyright law is to protect from annexation by other people the
fruits of a man’s work, labour, skill or taste.
RIGHTS CONFERRED BY COPYRIGHT FOR COMPUTER PROGRAMS:
Copyright is a collection of various
rights. According to the Indian Copyright Act, 1957, different rights have been
granted to owners of copyright depending upon the nature of work. The owner of
a dramatic work possesses certain specified rights. Likewise owner of a
literary work possess certain other specified rights mentioned in the Act.
Computer program is included in the definition of literary work. However,
depending upon the additional features of this new type of literary work,
certain additional rights have also been enumerated in the Act. The owner of a
copyrighted computer program thus has the following rights under Indian
Copyright Act, 1957. Section 14 of the Copyright Act, 1957 provides that[13]:
For the purpose of this Act,
“Copyright means the exclusive right subject to the provisions to do or authorize
the doing of an of the following acts in respect of the work or an substantial
work thereof”[14],
namely,
Thus the owner of the computer
program in India has the following rights[15]:
COPYRIGHT AND INTERNET: A LEGAL PARADIGM:
A significant development of seminal
importance took place in early 1970’s when FTP the (File Transfer Protocol) was
reacted in 1973 which made the transfer of files possible between network of
military and academic computers. The second major success took place only a
year later in 1974 when TCP/IP (Transmission Control Protocol / Internet
Protocol) was developed. It provided a guaranteed transfer of data between two
computers. Millions of people around the world have downloaded P2P software and
are increasingly using them to exchange music, movie and software files.
Service providers have direct access to Internet and any system holder can have
access to internet only via direct link holder.[16]
The position in India is shallow due to a dearth of case law rendered by either
the Supreme Court or the High Court even after two decades of inclusion of the
provisions relating to computer programs under the Copyright Act. However there
are few decisions delivered by courts with reference to determining non-literal
infringement in other classes of works. In R.G.Anand v. Deluxe films and Ors,[17]
DOCTRINE OF PASSING OFF ACTION:
Passing off is a form of tort and is
based on the common law principle that one should not pass off his goods as
that of another. According to Halsbury, “nobody has any right to represent his
goods as the goods of somebody else”.[18]
The object of this law is to protect the reputation and goodwill of the
business from being encroached upon by dishonest competitors and safeguard the
public from deception by providing a right of action against anyone who tries
to pass off his goods or services as those of someone else. It is based on the
general preposition that no man may pass off his good as those of another.
Essentials of passing off action:
Lord Diplock described the essential
elements for passing off action as:
1. Misrepresentation.
2. Made by a trader in the course of
trade.
3. To prospective customers of his or
ultimate consumer of goods or services supplied by him.
4. Which is calculated to injure the
business or goodwill of another trader,
5. Which causes actual damage to a
business or goodwill of the trader by whom action is brought or will probably
do so,[19]
Subsequently, Lord Oliver in Reckitt
& Coleman v. Borden,[20]
redefined Lord Diplock’s ingredients for passing off action in a concise and
much more precise manner. According to him, for an action of passing off,
1. The claimant must establish goodwill,
2. The claimant must establish a
misrepresentation as to the goods or services offered b the Defendants,
3. The claimant must show damage or
likely damage to the claimant’s goodwill. In many cases, the court subsequently
started applying the three main ingredients laid down by Lord Oliver for
determining the criteria for a passing of action.[21]
Computer
programs which are commercially distributed in object codes(machine-readable
form) contains ideas embodied in the program, Generally to maximize the
profitability and gain monopoly, a programmer may not be willing to part with
such valuable ideas by which he could ensure that a substitute or better
products are not available in the market. Thus, programmers seeking copyright
protection must not be allowed to keep the information in secret, as it will
destroy the delicate balance underlying the copyright law. In this regard, the
Indian Copyright Act, 1957 provides for certain important provisions expressly
permitting reverse engineering within a defined ambit.[22]
Even while Indian Copyright Act, 1957 afforded protection to computer programs
back in 1980, extensive amendments to the Act were made in 1994, which were
aimed to provide some concrete form of copyright protection to computer
programs considering initial phases of development in the Indian Software
industry. The 1999 Amendment provides for the following:[23]
Further, the provisions relating to
the Internet Service Providers are specifically legislated in the Information
Technology Act, 2000.[24]
In 2005, Telecom Regulatory Authority of India (TRAI) had set up a target of 6
million internet subscribers and as man broadband subscribers, whereas the
actual user base achieve was 5.55 billion[25].
The issue of online copyright infringement liability for ISPs has been
increased since the use of the Internet started to expand rapidly in the early
1990s and has been the subject of extensive debates worldwide. Worldwide man
nations have tried to define the liability of ISPs in disseminating third party
content. Many of these laws relates to Criminal Law, Information Technology Law
or Copyright Law. These statutes have tried to solve the problem by adopting
either of the two approaches: horizontal approach and non-horizontal approach.[26]
INFRINGEMENT OF COPYRIGHTED SOFTWARE:
Copyrighted Software is also
otherwise known as Software Piracy. In simple terms, Software Piracy is a theft
– i.e. stealing of someone’s original idea and product. In legal terms, it
means reproduction, distribution or use of a software product without the
permission of the Author[27].
It is done in following manner:
·
The right to store the work in any
electric method or even reproduce the work.
·
(i) End User Privacy: The
company or individual users who have obtained license of installation of
software for one’s computer, installs it on more computers under the license
agreement. This is called ‘under licensing’ and it is becoming a grave concern
to the Business Software Alliance (BSA). To avoid this, End User Licensing
Agreements (EULA) are executed between the author and the purchaser of the
software[28].
·
(ii) Hard Disk Loading: Illegal
pre-installation of software on to the computers by computer dealers prior to
its sale or installation of legally acquired copy on more than one machine and
such computers are usually sold without any form of licensing documentation.
·
(iii) Software
Counterfeiting: The illegal duplication and sale of software in a
form that is almost identical to the genuine product.
·
(iv)
Internet Piracy: Here the software programs are
placed on the internet for free downloads by third parties and also represented
for its sale. This is the latest and fastest growing form of software piracy.
REMEDIES FOR
INFRINGEMENT OF COPYRIGHT:
·
1. Temporary and Permanent Injunctions.
·
2. Monetary Damages caused along with
infringers profit.
·
3. Statutory damages.
·
4. Impounding and destruction of all
infringing copies, including masters.
·
5. Court Costs along with Attorney fees.
CONCLUSION:
With increase in competition and
e-business in all aspects and all fields of economic growth, it is necessary
for every software author to register copyright not only for his personal
protection but also as to not hamper the economic growth of the country in any
manner vide software piracy. It should be noted
that the copyright only protects the expression, not the idea that lies behind
it. This is the key difference between patent and copyright. Thus, taking the
complexity of the patent protection in the view, copyright is the most
conducive option in the current scenario to safeguard authors work’s
creativity. The copyright protection for computer programs is important if the
product holds some considerable value or has the potential to transform human life. Thus,
computer programs or software tools with their diverse aspects work as an
important input in Information Technology with copyright dimensions. In short,
protective immunity and insulation of online service providers from liability
in the name of free flow of information is not feasible legally. The provision giving extra territorial
jurisdiction is bound in Information Technology and specific legislations of
other jurisdictions also. Obviously the need for such provision is driven by
the borderless nature of the Internet. These provisions are, however, viable
only if there is mutual co-operation amongst the enforcement authorities and
Governments.[29]
[2] R.C.Cooper v. Union of India,
(1970) 1 SCC 248.
[3] Prabuddha Ganguli, “Intellectual
Property Rights: Unleashing the Knowledge Economy”, Tata McGraw Hill Education
Private Ltd., 1st edn, 2001, pp.30-32.
[4] Dr.Fareed ahmad Rafiqi, “Copyright
Protection- An Indian Perspective”, Law Publishers (India) Pvt. Ltd., 1st edn, 2013, p.3.
[6] WIPO is one of the 16 specialized
agencies of the United Nation system. WIPO located in Geneva, Switzerland, was
created in 1967 and is responsible for promoting the protection of Intellectual
property throughout the world. It fulfills this responsibility by promoting
cooperation among nations in intellectual property matters administering
various unions and other treat organizations founded on multilateral treaties
and creating modern laws for adoption by developing nations.
[7] Hohfled, W.N., “Fundamental legal
conceptions as applied in Judicial Reasoning”, Lord of Hampstead, 4th
edn. 1979, pp.260-266.
[8] Pankaj Jain and Pande Sangeet Rai,
“Copyright and Trademark Laws”, Manav Law House, 1st edn. 2005, pp.
5-7.
[9] V.T Thomas v. Malaya Manorama, AIR 1988 Ker 291.
[11] Tata Consultancy Services v. State of Andhra Pradesh, 271 ITR
401 (2004)
[12] Satsang v. Kiron C. Mukhopadhya,
AIR 1972 Cal 533 at p.537.
i.
To reproduce the
work in a material form including the storing of it in an medium by electronic
means,
ii. To issue copies of the wok to the public not being
copies already in circulation,
iii. To perform the work in public or communicate it to the
public,
iv. To make an cinematographic film or sound recording in
respect of the work,
v. To make any translation of the work,
vi. To make an adaption of the work,
a.
In the case of
the computer program-
a.
To do any of the
acts specified in clause a,
b.
To sell or give on hire,
or offer for sale or hire any of the computer program, regardless of whether
such copy has been sold or given on hire on earlier occasions.
[15] Reproduction
right, Right to issue in public, Public performance or public communication
right, Right to make a cinematographic film or sound recording’, Translation
right, Adaptation right, Right to do in relation to a translation or an
adaptation of the work of any of the acts specified above and, Right to sell or
give on hire, or offer for sale or hire any copy of the computer program.
[16] Internet access provider refers to
a consortium that provides high speed access to the internet to business,
universities, non-profit organizations and individuals. Most ISPs offer a range
of connection option, ranging from dial-up modem connection to high speed ISDN
and ADSL. It also provides email, Use-net and web hosting facilities. Bran
Pfaffenberger, Webster’s New World, Computer Dictionary, 9th edn.
(2004) at 203.
[17] The existence of copyright in
non-literal element has been decided in affirmative in relation to other
category of works, the fact of the dispute related to the violation of the
copyright in the play staged by the appellants by the screening of the
cinematographic film based on the same theme.
[18] Reddaway v. Banham, (1896) AC 199
at p.304.
[19]
Erven Warnink Besloten Vennootschap v. J.Townend & Sons (Hull) Ltd, (1979)
AC 731.
[20]
Corby Ltd v. Wards Mobility Services Ltd, (1991) FSR 169.
[21] Dechem Ltd. v. Cadbury (India)
Ltd., 2000, 5 SCC 573.
[22] Sec. 52 (1) of the Copyright Act,
1957.
[23] Section
52(1): 1. Doing of any act necessary to obtain
information essential for operating interoperability of an independently
created computer program with other programs by a lawful possessor of a
computer program provided that such information is not otherwise readily
available,
2.The observation, study or
test of functioning of the computer program in order to determine the ideas and
principles which underline an elements of the program while programming such
acts performing for the functions for which computer programs was supplied,
3. The making of copies or
adaptation of the computer program from a personal legally obtained copy for
non-commercial personal use.
[24] The term Internet Service Provider
has been defined under section 79 of the Information Technology Act, 2000 as:
“Network Service Provider” means an intermediary. An intermediary is denied
with respect to a particular electronic message a person who on behalf of
another person receives stores or transmits that message or provides any
service with respect to that message.
[26] See for US formulation: “http://
en.wikipedia.org/wiki/ Digital Millennium Copyright Act.”, last visited on
23.11.2022.
[27] http://www.proind.in/blog/legal-protection-for-computer-software-in-india/
last visited on 28.11.22
[28]
Ibid.
[29]
Indira Carr, India joins the Cyber-race: Information Technology Act, 2000(2000)
Int. T.L.R. 122 at p.123.
Article Information
COPYRIGHT PROTECTION AND INFORMATION TECHNOLOGY: AN INDIAN PERSPECTIVE
Authors: DR. M. VIDHYALAKSHMI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/10
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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