Copyright of Software in India

In the 1970s, a significant debate ensued over the appropriate method of protecting computer software.

Copyright, as the chosen avenue, serves to protect the specific expressions contained within the software, rather than the underlying ideas, while also recognising and preserving the creative aspects of these works.

This article on “copyright of software in India” will walk you through the process of how to copyright software in India and give you some useful insight into this subject matter.

Understanding Copyright of Software in India

Copyright, put simply, is the safeguarding of your intellectual creations. It grants exclusive rights to individuals, effectively establishing a monopoly over their original works.

This protection encompasses a wide range of creations, including art, literature, cinematographic film, sound recording, music, and computer software, among others.

In the context of software, the Copyright Act of 1957 in India plays a pivotal role.

It not only provides copyright protection for software but also addresses aspects like infringement, registration, and the rights associated with software.

Importantly, copyright can be obtained for a computer program in various tangible forms, which may involve consolidating it on a magnetic disk, ROM, or even in print form.

However, it’s crucial to note that not everyone is eligible for copyright protection. Specific eligibility criteria must be met to secure these rights.

Copyright and Source Code vs. Object Code

While copyright protection is established upon the creation of source code, it’s essential to recognise that it’s the object code that contains the actual instructions governing the computer’s behavior during program execution, and this is what is generally safeguarded by copyright.

Often, the source code remains confidential and undisclosed to the public, preserving it as a valuable trade secret, even when numerous copies of the program are distributed in object code form.

The source code contains information that facilitates the programming process and enhances comprehension of the program.

Although source code and object code represent distinct forms, it remains valuable to consider them as two manifestations of the same copyrighted work.

From the perspective of registration with the Copyright Office, source code and object code are treated as equivalent, ensuring comprehensive protection for the software.

Eligibility Criteria for Software Copyright

To qualify for software copyright protection, individuals must meet the following criteria:

1. Originality: The work must be genuinely original, and showcase the creator’s expertise and understanding. It should not be a direct copy or imitation of existing software.
2. Beyond Algorithms and Tables: Software that generates only algorithms and tables typically does not qualify for software copyright protection.
3. First Publication in India: Before launching the software in any other nation, it must first be made available in India. If the software is initially published elsewhere, the creator must be an Indian citizen to be eligible for copyright protection.

It’s worth noting that while the government grants copyright protection under the Copyright Act of 1957, any software with a significant technical aspect may also be eligible for a patent under the Indian Patent Act of 1970.

Rights Granted to Authors Under Software Copyright

Software copyright provides authors with a range of intellectual property rights, including:

1. Storage and Reproduction: The right to store the work in electronic form and reproduce it as needed.
2. Distribution: The right to distribute copies of the software to the public.
3. Public Display: The right to display the software publicly.
4. Translation: The right to translate the work into various formats.
5. Adaptation: The right to create adaptations or derivative works based on the original.
6. Commercial Use: The right to sell or rent the software for legitimate purposes.

In cases where a group of individuals collaboratively creates the software, the government grants these rights to all of the contributors collectively.

How to Copyright Software in India

For software creators seeking to protect their original works, the copyright registration process is available under the Copyright Act of 1957.

While it can be somewhat intricate and time-consuming, obtaining legal guidance is advisable for a smoother experience.

Let’s take a closer look at the government’s procedure for registering software copyrights:

1. Application Submission:

Begin by submitting an application for the software copyright.

It is essential to include the ‘Source Code’ with your application for registration, which remains confidential.

The authorities, however, make the object code public.

2. Diary Number:

After the application filing, the source code is published in a diary with a designated number.

3. Thirty-Day Public Display:

For a period of 30 days, the authorities make the source code visible to the public.

If no objections are raised during this time, the procedure continues. In the event of objections, a copyright hearing is scheduled.

4. Application Examination:

If no objections arise, an examiner reviews the application for any discrepancies.

When discrepancies are identified, a Letter of Discrepancy is forwarded to the software developer or programmer.

However, if the application is error-free, it proceeds to the next stage.

5. Registration Approval:

The final step involves obtaining approval from the registrar.

The registrar may either accept or decline the application form. If declined, you will need to initiate the process anew.

If your application is approved, you will receive an official notification from the relevant authorities.

In addition, they will include a copyright notice using the symbol © on copies of the work.

Documents Required for Software Copyright Registration in India

To complete the registration of copyright, you will need to submit the following documents:

• Proof of your name
• Proof of nationality for the applicant
• Description of the work
• Address proof
• Copies of the submitted work
• The publication date for the work

These documents are essential for the proper registration of your software copyright, ensuring that your intellectual property is adequately protected.

Copyright Protection for Software

Copyright laws generally safeguard the specific expression of an idea rather than the idea itself.

In the context of software, this implies that the computer program, whether in human-readable form (Source Code) or machine-executable form (Object Code), as well as related manuals, are eligible for copyright protection.

However, the methods and algorithms within a program are not protected as expressions. Copyright protection primarily guards against direct copying of Source Code and Object Code.

Copyright applies to all original literary works, whether published or unpublished.

The term ‘literary work’ here refers to various forms of written content, such as computer programs, tables, and compilations. This includes computer databases that exist in physical or tangible formats.

Therefore, for a work to receive copyright protection, it must be recorded on some tangible medium.

This protection is automatic, commencing the moment the work is embodied on a medium such as ROM, magnetic tape, or diskette.

International Copyright Protection

Copyright regulations extend to works created or published in foreign countries as well.

This extension of protection arises from international treaty obligations in which participating nations commit to affording citizens of other member countries the same level of copyright protection as their own citizens receive.

Several conventions and treaties are instrumental in safeguarding copyrighted works internationally:

Berne Convention

Signatory nations to the Berne Convention, established in 1886, are obligated to provide authors from other member countries with copyright protection equivalent to what their own nationals receive.

The Berne Convention also mandates that participating nations enact copyright laws adhering to specific standardised norms.

These norms encompass copyright durations, the types of protected works, moral rights of authors, and the elimination of requirements for registrations, deposits, and the attachment of copyright notices.

Universal Copyright Convention (UCC)

Developed by the United Nations in Geneva in 1952, the UCC serves as an alternative to the Berne Convention.

The UCC imposes fewer stringent requirements on the copyright laws that member nations must enact.

The United States ratified the Universal Copyright Convention in 1972.

International Copyright Order

The government of India introduced the International Copyright Order in 1958.

Under this order, any work initially published in a country that is a member of either the Berne Convention or the Universal Copyright Convention is accorded the same treatment as if it were first published in India.

In India, copyright registration is not mandatory, but it provides authors with enhanced protection in cases of infringement of copyright.

Software Protection: Copyright vs. Patent

In the realm of intellectual property, computer software predominantly falls under the purview of copyright protection.

Copyright safeguards the specific expression of an idea rather than the idea itself, making it the primary avenue to protect software.

Under copyright protection, an original computer program, including its source code, object code, and associated manuals, is automatically shielded upon creation in a tangible form.

This protection prohibits unauthorised copying, distribution, and reproduction of the software, ensuring that creators’ rights are respected.

However, there are circumstances in which computer software may also be eligible for patent protection in India.

To figure out under which specific circumstances, software can be patented, consider exploring the linked article: “Is Computer Software Patent or Copyright?”

Benefits of Protecting Software

Registering your software copyright offers a range of advantages, both in the United States and India:

1. Public Record: Registration creates an official public record of your copyright claim, providing a clear and indisputable record of your ownership.
2. Prerequisite for Legal Action (U.S.): In the United States, registration is a prerequisite for initiating legal action in cases of infringement. In India, this requirement does not apply.
3. Establishes Validity: Registering within five years of publication or before publication establishes strong prima facie evidence of the copyright’s validity in court. It affirms the facts stated in the registration certificate.
4. Enhanced Legal Remedies (U.S.): In the U.S., if registration occurs within three months after publication or before any infringement, the software creator gains access to statutory damages and attorney’s fees in legal proceedings. Without timely registration, only actual damages and profits are available as remedies.
5. Customs Protection: Registration enables the copyright owner to record the registration with the U.S. Customs Service. This step offers protection against the importation of infringing copies, safeguarding the creator’s rights against unauthorised reproductions entering the country.

These advantages underscore the importance of copyright registration, providing legal safeguards and remedies for exclusive rights owners in both the United States and India.

Conclusion

The Indian Copyright Act contains provisions that safeguard the copyrights of computer software.

According to Section 2(o) of the said Act, “literary work” encompasses computer programs, tables, and compilations, which also includes computer databases.

Obtaining copyright protection for software is a straightforward process – the developer only needs to store the program on any tangible medium, such as a ROM, hard disk, or any digital storage device.

This action automatically meets the requirements for copyright protection.

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