IPR Law in India:
In India, the Intellectual Property Rights (IPR) of computer
software are covered under the Copyright Law. Accordingly, the copyright of computer
Software is protected under the provisions of Indian Copyright Act 1957. Major changes to
Indian Copyright Law were introduced in 1994. |
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These changes came into effect from
10 May 1995. This has made the Indian Copyright law, one of the toughest in the world. The
amendments to the Copyright Act introduced in June 1994 were a landmark in the copyright
regime of India. For the first time in India the Copyright Law clearly explained the
rights of copyright holder, position on rentals of software, the rights of the user to
make backup copies and most importantly, the amendments imposed heavy punishment and fines
for infringement of copyright of software and fines for infringement of copyright of
software.
Software creates unique problems because it is so easy to duplicate and the copy is
usually as good as original (although many a times plagued with computer virus). The fact,
that the copy is as good as original, however, does not legitimate piracy. The Copyright
infringer may be tried under both civil and criminal law.
According to section 14 of the Copyright Act, it is illegal to make or distribute copies
of copyrighted software without proper or specific authorization. The only exception is
provided by section 52 of the Act, which allows a backup copy purely as a temporary
protection against loss, distribution or damage to the original copy.
The 1994 amendment to the Copyright act also prohibits the sale or to give on hire, or
offer for sale or hire, any copy of the computer program without specific authorization of
the Copyright holder.
A civil and criminal action may be instituted for injunction, actual damages (including
infringer's profits) or statutory damages per infringement etc. Moreover, with the
amendments to Indian Copyright Act in 1994, even the criminal penalties have substantially
increased. Section 63 B, stipulates a minimum jail term of 7 days. The jail term could be
extended up to three years. The Act further provides for fine ranging from Rs. 50,000 to
2,00,000, and jail term up to three years for such an infringement.
Agencies of Government of India have been very actively participating in protection of the
rights of Copyright holder. Both Department of Electronics and Ministry of Human Resource
Development have been active in incorporating amendments to the Indian Copyright Act.
These agencies are now helping the law enforcing agencies e.g. the Police to enforce the
law. Today, officers of these government agencies as well as NASSCOM are committed to
enforce copyright laws and eradicate the menace of software piracy. Anti-Piracy raids
jointly facilitated by NASSCOM and Business Software Alliance with active cooperation from
law enforcing authorities over the last few years at some of the pirates in metro as well
as smaller cities have already had salutary effect.
India’s membership to international conventions:
Copyright laws operate territorially. They generally provide protection only for a
country's nationals or for works first published in the country. Generally, treaties /
bilateral agreements address the availability of protection for foreign authors and grant
the same protection to foreign authors as to nationals under "Reciprocity"
conditions. The most significant international treaties relating to Copyright protection
are the Universal Copyright Convention and the Berne Convention.
| UCC |
The Universal
Copyright Convention (UCC) was adopted in 1952 and is administered by UNESCO. 92 countries
belong to this convention. India is a member of Universal Copyright Convention. Under this
treaty, each member state grants the same protection to works (whether published or not)
of nationals of, and to works first published in any other member state as it grants to
its nationals for works first published in its territory or unpublished works created
within its territory. Thus, software created by an Indian author or first published in
India is protected in a convention member country to the extent that the member's current
Copyright status protects software.
This provision applies only to works that were first published outside the country
requiring the observance of the formalities, and were not authored by one of that
country's nationals. Also formalities such as registration are permitted under UCC in
order to bring an infringement suit.
Some of the countries who are members of UCC include Argentina, Australia, Austria,
Belgium, Brazil, Canada, China, Denmark, Finland, France, Germany, Hong Kong, Hungary,
Ireland, Israel, Italy, Japan, Luxembourg, Mexico, Netherlands, New Zealand, Norway,
Pakistan, Poland, Portugal, Russia, South Korea, Spain, Sweden, Switzerland, United
Kingdom, and United States. |
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| Berne
Convention |
The Berne
Convention was established in 1986 in Berne, Switzerland, in order to protect
international copyright through mutual cooperation. It is administered by World
Intellectual Property Organization (WIPO). 105 countries are members of this convention.
The Berne Convention contains a more far reaching regulation of Copyright than does the
UCC. Berne members constitute a union that is open to all countries of the world, provided
that certain minimum protective requirements are met. These requirements include national
treatment, granting of certain moral rights to authors with regard to the exploitation of
their works, the granting of certain economic rights and adoption of certain minimum terms
of protection for various works. Berne also provides Copyright protection without
requiring any formalities.
Signatories to Berne Convention include amongst others: - Argentina, Australia, Austria,
Belgium, Brazil, Bulgaria, Canada, Czechoslovakia Chile, China, Colombia, Costa Rica,
Denmark, Ecuador, Egypt, Finland, France, Germany, Greece, Hong Kong, Hungary, India,
Iceland, Indonesia, Ireland, Israel, Italy, Japan, Lebanon, Lichtenstem, Luxembourg,
Malaysia, Manaco, Marocco, Mexico, Netherlands, New Zealand, Norway, Pakistan, Peru,
Philippines, Poland, Portugal, Romania, Siam, South Africa, Spain, Sweden, Switzerland,
Syria, Turkey, Tunisia, United Kingdom, United States, Uruguay, Venezuela, Vatican City
and Yugoslavia |
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