This article deals with the study on Protection of Software and Software Piracy under the Copyright Laws.
Srishti Sneha | Symbiosis Law School, Hyderabad | 8th May 2020
INTRODUCTION
Copyright is the protection given to the creators or authors of “original works of authorship” which includes dramatic, musical, artistic and other intellectual works. This essentially gives the owner of such copyright the right to make its copies, distribute the copies etc. Computer Software is also protected under Copyright and comes under literary works under the Copyright Act, 1957. Copyright Infringement in the context of a computer program is when an individual tries to obtain benefits given to the copyright holder of such program,. Software piracy is the copyright infringement of the computer programmes.
The piracy of Software includes copying and distributing a software developed by the copyright holder without their permission or authorization.
With respect to computer software, the copyright protection also extends to every modification or addition that is made to the source code, which is why computer programs or software are not protected by a single copyright but a series of copyright.
The amendments in the Copyright Act 1994, brought in the definitions of Computer programs and computer databases. It also states the rights of a copyright holder, position on rentals of such software, rights of the users to make backup copies. It also levies a heavy punishment on infringements on software protected under the Copyright Law. It also holds those people accountable that use a software that they know are pirated versions of the actual software.
This paper seeks to study various international conventions on software piracy. This paper aims to study software piracy in the light of Copy Right Act, 1957. It shall also study various judicial precedents and tests laid down to ascertain software piracy.
TREATIES AND CONVENTIONS DEALING WITH SOFTWARE PROTECTION
The rationale behind software protection under Copyright is to encourage creativity and innovation among creators by giving them the benefits under the Copyright. The international instruments that deal with software protection under Copyright are,
Berne Convention
Berne Convention was the first convention on Copyright. Berne Convention does not explicitly include software under Copyright, however, Article 2 of the Berne Convention is not exhaustive. Moreover Article 2(7) makes the protection of work of applied art under national legislation. This essentially means that the extent of protection, term of protection and conditions under which these works can be protected are dependent on the statutes adopted by the countries. Thus since works of computer programs that have utilitarian characteristics and also expressive elements can be brought under the ambit of applied art.
Universal Copyright Convention
The Article 1 of UCC protects literary, artistic and scientific works. According to Article 2 UCC’s , a software that is first created by an author of a contracting state or which is first published in that contracting state is protected in the other UCC member country’s copyright laws as well. Moreover under Article 3, in case the country has certain condition under their national law that are to be complied with such as registration, then it shall assume such formalities to be completed if all of the published works contain “©” , name of the copyright proprietor and the year when it was first published. However these provisions only apply if the works were published outside the country that requires such observance and were not authored by such country’s nationals.
TRIPS Agreement
According to this Agreement there are 3 forms of protection of Software. They are Copyright, Patent and Trade Secrets. The aforementioned agreement explicitly includes computer software under copyrighted works. Article 10 of the aforementioned agreement states that its state members must protect the software in source or object code, as literary works under Berne Convention. Algorithms that are merely ideas are not protected under Copyright Law. Source codes and Object codes are considered to be the product of algorithms and are therefore considered to be the expression of ideas.
WIPO Copyright Treaty
In the year 1996 two copyright treaties were negotiated, namely, WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty. The WCT makes it explicit under Article 4 that computer programs are protected under Article 2 Berne Convention as literary works. Under the aforementioned convention the Software makers are granted right to control the rentals of the computer program. Moreover compilation of data where the selection or arrangement are fairly original are protected as compilations.
PROTECTION OF SOFTWARE UNDER COPYRIGHT ACT
Initially under Copyright Act, 1957, computer programs were not included under literary works. Copyright Amendment Act of 1994 has recognized computer programs under literary work. Section 2(o) the Copyright Act clarifies as to what literary works include. According to the aforementioned section literary works (with respect to computer programs) also include computer programs, tables and compilations including computer databases. According to section 2(ffc), the “computer programme” is construed as set of instructions that are expressed in words, schemers, codes or any other form, which includes a machine-readable medium, capable of causing the computer to perform a particular task or achieve a particular outcome. Moreover in case of compilations the test of originality is not on the material but relies on its organization. In the case of Burlington Home Shopping Ltd. v. Rajnish Chibber[1], the question of protection of computer databases was put before Delhi High Court for consideration. The court held that taking into account the time, money, labour and skill put in for the compilation of addresses the, such work amounted to literary work though such sources are commonly situated.
Therefore the authors of software have been prescribed rights under Section 14(b) as follows,
“(i) to do any of the acts specified in clause (a)[2];
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.”
As stated above, idea is not protected but its expression is protected. Therefore when the coding is carried out such new code constitutes expression which is protected under the copyright law. Moreover, a Computer Program whether an object code or a source code is protected under “literary works” under the Indian Copyright Act. The copyright protection to programs can only be granted when it satisfies the requirement of originality. While the statute does not define the term originality, the Supreme Court has held it to mean that there must be a minimum amount of creativity or intellectual effort by the author. In case of several suits taken up by Microsoft, the court held that merely showing that such program originated in Microsoft and that Microsoft possessed the original copyright certificate are sufficient proof.[3]
It is pertinent to not that creative copying of instructions which end in development of same program but use different line of codes will not be a violation of copyright as copyright is vested in the instruction and not the end product. Under Section 14 of the Act, it is illegal to produce or distribute copies of copyrighted software without proper or specific authorization. The only exception provided is making backup copies in case the original copy is lost or damaged. Moreover the act also prohibits the sale or on hire or offer to sell or hire any computer program without any specific authorization by the copyright owner. Moreover in India, it is not necessary to register with the copyright office to obtain copyright protection.
COPYRIGHT INFRINGEMENT AND SOFTWARE PIRACY
Copyright infringement or piracy is where any person or organization exercises the right of the copyright owner without their authorization to exercise such right. In the context of computer programs, these include copying any code or creating any derivative works. Software piracy is the copyright infringement of software. Section 51 defines what Copyright infringement is,
“Copyright in a work shall be deemed to be infringed— (a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act— (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or [(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or] (b) when any person— (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports into India, any infringing copies of the work: 3 [Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.]”
In cases of literal copying the creative and substantial part of the codes are copied without any changes. Here creative means the original programmer’s unique way of writing the code and “substantial” portion is decided on case to case basis. Non literal copying includes copying the structure sequence and organization of such code. It is pertinent to note that while the Copyright Act protects literal expressions, it does not bring non literal elements under its ambit. Therefore, the court abridges this gap by also considering non literal similarity in determining cases of infringement of software. The courts in India mainly determine these cases by comparing the programs and determining whether there is a substantial similarity between the two.[4]
While there were a variety of tests in order to ascertain copyright infringement all over the world one test that has been widely accepted to look for non-literal copying of expression is the “Abstraction, Filtration and Comparison” test laid down in United States in the caseof Computer Associates v. Altai[5]. The Court has developed a three stage test to check for copyright infringement known as “Abstraction, Filtration and Comparison”.
Stage 1: Abstraction
This step comprises separation of software elements in the order of generality. For example, object code, source code and then user interface.
Stage 2: Filtration
In this step each element separated under abstraction is examined in order to separate copyrightable material from non-copyrightable material.
Stage 3: Comparison
In this step the copyright claimant’s copyrightable material is compared with that of the defendant to check if there is substantial similarity in the filtered material.
It can be understood on comparing the two that in India more often than not it is only seen if there is a substantial similarity between the two plaintiff’s material and defendant’s material. However, the courts must take a precedent from the aforementioned court as in non-literal works it will help is ascertaining where the copyright infringement lies.
Exceptions
Section 52 of the Indian Copyright Act provides for exceptions or acts in relation to computer program that do not come within the ambit of Copyright infringement. These include, making the copies or adaptation of computer programmes from the lawful possessor in order to use the programme for the object for which it was given or in order to make backup copies in case of loss or destruction in order to only use it for the purpose it was supplied. Making the copy or adaptation is also permitted for the purpose of observation or study or test of functioning of the computer program in order to identify the principles behind elements of such program if performing such acts are necessary to for functions for which such programme was supplied. Making such copy of programme is permitted if it is legally procured for non-commercial personal use. When making such copy is necessary to get information necessary for operating interoperability of a computer programme that is independently created with other programmes by a lawful possessor of such computer program. The provision to this rule states that such information must not be readily available.
LEGISLATIVE AND JUDICIAL RESPONSE TO COMBATING SOFTWARE PIRACY WITH RESPECT TO COPYRIGHT INFRINGEMENT OF SOFTWARE NATIONALLY AND INTERNATIONALLY.
India
The Amendment in Copyright Act in the year 1994 added Section 63 B which states that where any person knowingly uses in a computer an infringed copy of a computer program, the person shall be punishable with imprisonment for a term which shall not be less than 7 days and may extend up to three years and with fine which shall not be less that Rupees 50,000 but may extend to rupees 2 lakh. The proviso states that if such computer program has not been used for gain or during trade or business the court may with adequate and special reasons which should be specified in judgement may not impose any sentence and must impose fine which shall extend up to 50,000 rupees. Other than the aforementioned section permanent injunction and damages can also be asked in a suit for copyright infringement of software.
Microsoft Corporation and Another v. Kanhaiya Singh and Another[6]:
Recently, the Delhi High Court found the defendants guilty of passing off and directed the defendant to pay 20,00,000 to Microsoft Corporation in a software piracy case and also granted the plaintiff permanent injunction against the defendant from passing off Microsoft products. The court held that the loading the plaintiff’s software into computer hard disks and selling them amounted to software piracy and therefore held the defendants to be guilty of software piracy.
Adobe Systems, Inc & Another v. Mr. Mahindra Saxena & Others[7]
This case was filed by two companies Adobe Systems and M/s Microsoft Corporation for the grant of permanent injunction against the defendants in order to restrain them from infringement of copyrights, trademarks and payment of damages. Here the court finding the defendants guilty held that the plaintiffs had a statutory rights with respect to the software and the use of counterfeited or duplicate software by the defendants are illegal and a violation of Copyright Laws. It causes financial damages to the plaintiff and also deceives the public. It further held that it causes loss to the Government as well as the Government loses out on huge revenue because of such counterfeiting as these are illegal activities and no account books are maintained and taxes are not paid as well.
Moreover under the IT act S. 1(2) read with S. 75 provides for extra territorial application of the Act, thus, if a person from another country violates the Copyright of a person via computer programs or computer network located in India, he will be liable under Indian provisions.
USA
In the United States, The Copyright Act 1976 deals with laws related to Copyright. In case of an infringement, injunction (Section 503), damages and profits (Section 504), Costs (Section 505) can be granted to the plaintiff. Furthermore under Criminal Action, heavy penalty up to 2500 dollars can be levied on the defendant. Unlike India there is no provision for imprisonment under its Copyright Act under for Criminal Action. As seen above, the precedent laid down in Computer Associates v. Altai is now used to determine Copyright Infringement. Prior to this case various tests were followed such as, access test, wherein it is seen that whether there was a reasonable opportunity for the defendant to copy the plaintiff’ work.
Iterative test was laid down in the United States in the case of E. F Johnson v. Uniden Corporation[8] wherein the case for infringement can established by showing that the defendant used the copyrighted work of the plaintiff in preparing the copy in issue which can be proved with the help of access test and similarity check and the defendant’s work is produced by duplication of substantial portions of the copyrighted work. However this test is not applicable in checking for non-literal elements such as sequence and structure and therefore is not very useful. The look and feel test was followed as laid down in Whelan Associates, Inc. v Jaslow Dental Laboratory[9]. In this case it was laid down that in order to prove copyright infringement, 2 things must be proved, and that the plaintiff owned the copyright and the defendant copied such program. Taking into account that copying can be rarely proved through direct evidence the court held that it must be shown that the infringed work was substantially similar to the copyrighted work and such copying was unlawful appropriation of copyrighted work. However later on the test laid down in the Computer Associates was found to be more prudent and was subsequently followed.
Gates Rubber v. Bando[10]
In the instant case the Plaintiff manufactured rubber belts that were used in industrial machinery. In order to ascertain the proper rubber belt for a particular belt it was necessary to perform calculations that included various variables. The company then developed a computer program known as ‘Design Flex 4.0’. With the aid of this program all they had to do was enter the variable and then the program would calculate and recommend a suitable belt for the machine. The plaintiff then procured Certificate of Registration for the aforementioned program. One of the employees of the company left the company and subsequently joined under company where a similar software was developed. Using the principle of abstraction, filtration and comparison, the court held that there were several elements of programs that were copied by the defendants.
CONCLUSION AND SUGGESTIONS
From the above mentioned material it is quite evident the software is copyrightable under International Conventions as well as under Indian Copyright Law. However such works must be original and must be expression of ideas and not idea itself to avail protection and benefits under Copyright Act.
A Copyright Infringement of software occurs when an individual try to avail benefits given to the copyright owner under the Copyright Act without specific authorization to use such benefit or act. As seen above it is quite difficult to prove infringement when non literal elements such as sequence are involved. In India the Substantial Similarity test is generally used. In other countries one of the tests widely accepted is the “Abstraction, Filtration and Comparison Test” which was laid down in United States. Indian Judiciary must also use this test to determine software piracy or copyright infringement.
Moreover the method to determine and infringement of non-literal elements can also be incorporated in the copyright act so as to avoid ambiguity that will consequently lead to uniformity in judicial decisions. Furthermore in India unlike USA a term for imprisonment is prescribed, this may be to deter people from infringing copyright, however, it is pertinent to note that deterrent theory more often than not does not serve as an efficient way to reduce illegal acts, and considering the fact that the Indian prisons are already overcrowded as they are, they can be substituted with higher penalty.
[1] Burlington Home Shopping Ltd. v. Rajnish Chibber 1995 PTC 278
[2]“ to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work 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 any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) 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);”
[3] Microsoft Corporation vs Mr. Kiran, MIPR 2007 (3) 214; See also Microsoft Corporation vs Deepak Raval; MIPR 2007 (1) 72
[4] Maraekat Infotech Ltd v. Mr. Naylesh V. Kothari & Ors, 2016 SCC OnLine Bom 2369.
[5] Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)
[6] Microsoft Corporation and Another v. Kanhaiya Singh and Another 5 W.P.(CRL) 558/2016 & Crl.M.A. Nos.3237/2016 & 3262/2016.
[7] Adobe Systems, Inc & Another v. Mr. Mahindra Saxena & Others Case no. CS (OS) No.782/2002, decided by the Delhi High Court on 7 July, 2009.
[8] E. F Johnson v. Uniden Corporation 623 F. Supp. 1485 (D. Minn. 1985)
[9] Whelan Associates, Inc. v Jaslow Dental Laboratory 1986 797 F.2d 1222, 230 USPQ 481
[10] Gates Rubber v. Bando, 10th Circuit Court. 9F, 28 U.S PQ 2s 1503
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