New Page 1

xxx>

  Home  |  Profile  |  Services  |

Home  |  Profile Services Clients  |  FAQs  |  Contact us

 

Servicemark

Trademarks

Patents

Designs
Copyrights
Cyberlaw

Dispute

   Resolution

   Services

Legal Process

   Outsourcing

Contract Drafting

   & Real Estate

   Services

Business

   Services

 


 
 

 

 





 

 
 

Copyright Law

In today's competitive business environment, the potential value of a company is based to a great extent on its ability to develop and capitalize upon new ideas and creativity. Copyright Law helps to protect original works of authorship against unlawful copying from someone else. Thus, important creative components of a
business including sales brochures, advertising, solicitation letters and emails, instruction manuals, architectural and engineering drawings, pictures, photographs, paintings, graphical images, web-site designs, computer software, music, and sound recordings can all be protected under copyright law. Copyrights grant exclusive rights to reproduce, produce derivative works, distribute, and perform or display the work in public.

We at Marks & Rights offer a wide range of copyright services including registration with the Indian Copyright Office, work for hire and assignment agreements, and conflict resolution.
 

Click here to request more information regarding Copyright Law


Frequently Asked Questions

This FAQ contains the following questions and answers:

1.   What is Copyright?
2.   What are the rights available through Copyright protection?
3.   What are the exceptions to these rights?
4.   Is this exception applicable to all program users?
5.   Can a licensee of a computer program copy, sell or rent the program?
6.   How should I obtain Copyright protection for my company's software?
7.   Is it true that I do not have to register my program with the Copyright Office to

      get Copyright protection?
8.   In what way would registration with the Copyright Office be helpful?
9.   How do I register a program with the Copyright Office?
10. What is the deposit requirement for Copyright registration purposes?
11. Is it necessary to deposit accompanying documents of the computer program

      for which Copyright registration is being sought?
12. Is there a possibility of divulging the trade secrets through deposit of source

      code?
13. In order to further ensure that the trade secrets are protected, is depositing of

      computer program in object code permissible?
14. In some of the programs, the screen could be the most commercially significant

      aspect. Is it necessary to register the program screen separately from the

      underlying code?
15. What notice needs to be put on computer program copies to seek Copyright

      protection?
16. How is a Copyright notice displayed?
17. What is an ideal place to display a Copyright notice?
18. Who owns the Copyright in a computer program?
19. If an employee/employees in a company develop a program, do they own the

     Copyright?
20. Is there some special registration to claim Copyright protection for programs

     written by employees?
21. For Copyright purposes, how is an 'employee' defined?
22. If an independent third party develops a program for a company, who owns the

      Copyright?
23. What is the rule for the transfer of Copyright right?
24. What is the mode of assignment?
25. Is it necessary for transfers of Copyright rights to be registered with Copyright

      Office?
26. How long does the Copyright protection last?
27. How is Copyright infringed?
28. What remedies exist for Copyright infringement?
29. What are the powers of Copyright Law enforcement authorities?
30. What are the actions that would facilitate action by enforcement authorities?
31. What is done to the infringing copies seized during a raid by enforcement

     authorities?
32. What role does NASSCOM play in enforcement of the Copyright Law?
33. What is software piracy? What does the Indian Copyright Law say about

      software piracy?
34. How are other countries implementing criminalization of corporate end user

      piracy?

 

1. What is Copyright?


Copyright is a form of intellectual property protection granted under Indian law to the creators of original works of authorship such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form, including a machine readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings.

Is it compulsory for a program to be published to receive Copyright protection?
No. Copyright applies to both published and unpublished works.
 

Top

 

2. What are the rights available through Copyright protection?


Copyright owners have the exclusive right to do or authorize the doing of any of the following in respect of a work or any substantial part thereof:

A. In case of a literary, dramatic or musical work not being a computer program,
to reproduce the work in any material form including the storing of it in any

    medium by electronic means;


to issue copies of the work to the public not being copies already in publication;
to perform the work in public, or communicate it to the public;
to make any cinematographic film or sound recording in respect of the work;
to make any translation of the work;
to make any adaptation of the work;
to do, in relation to a translation or adaptation of the work, any of the acts

   specified in relation to the work in sub clauses (i) to (vi)
 

B. In the case of a computer program,


to do any of the acts specified in para (A) above.
to sell or give on hire, or offer for sale or hire a copy of the computer program, regardless of whether such copy has been sold or given on hire on earlier occasions. It may be noted that Copyright confers a number of rights, some or all of which can be granted to others either exclusively or non-exclusively.
 

Top


3. What are the exceptions to these rights?


So far as it relates to computer programs, the making of copies or adaptation of a computer program by the lawful possessor of a copy of such computer program, from such a copy -
in order to utilise the computer program for the purpose for which it was

   supplied; or
to make backup copies purely as a temporary protection against loss, destruction

   or damage in order only to utilise the computer program for the purpose for

   which it was supplied; shall not constitute an infringement of copyright.
 

Top

4. Is this exception applicable to all program users?


No. These exceptions apply only when a computer program is sold (title to the program copy passes); they do not apply when a program copy is licensed as the licensee may waive the defenses. A licensee has only those rights that are specified in the license agreement.
 

Top
 

5. Can a licensee of a computer program copy, sell or rent the program?


Unless authorised by the Copyright owner, a computer program licensee does not have the right to lend or otherwise transfer program copy.
 

Top


6. How should I obtain Copyright protection for my company's software?


Copyright subsists in all original published or unpublished literary works; 'literary work' includes computer programs, tables and compilations including computer databases in any tangible form. You would therefore, have to do nothing but to record the program on some tangible medium to get copyright protection. Copyright protection, is automatic from the moment the work is embodied in some medium like ROM, Magnetic Tape, diskette or paper.
 

Top

7. Is it true that I do not have to register my program with the Copyright Office to get Copyright protection?


As per the Indian law, you do not necessarily have to register with the Copyright Office to get Copyright protection. Registration of any program is however a good idea.


Top


8. In what way would registration with the Copyright Office be helpful?


Registration with the Copyright office is helpful in an infringement suit. As per the Copyright Act, the Registers of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts there from certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts without proof or production of the original.
 

Top

9. How do I register a program with the Copyright Office?


Copyright Office regards computer programs as literary works, which can be registered using Form IV-Application for Registration of Copyright, Statement of Particulars and Statement of Further Particulars. A copy of these is 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, New Delhi by a postal order or bank draft or by deposit into a Government Treasury or branch of the Reserve Bank of India or the State Bank of India under the head of account: Major Head -XLVI- Miscellaneous, Minor Head "Naturalisation, Passport and Copyright Fees". The challan evidencing the payment shall be sent to the authority concerned by pre-paid registered post.


Top

10. What is the deposit requirement for Copyright registration purposes?


The Copyright Law requires the deposit of three complete copies of works whether published or unpublished. For works in machine-readable form only, "identifying portions" rather than complete works may be deposited. In the case of computer programs, it is helpful (or usual) to deposit the first and last few pages (say first 25 pages and the last 25 pages) of source code plus the page containing the Copyright notice, if included. However, depositing the entire work has its own advantage and should be considered.
 

Top

 

11. Is it necessary to deposit accompanying documents of the computer program for which Copyright registration is being sought?


Documentation, which normally accompanies the program, is regarded as separate work and for this reason if the same has to be registered, it must be separately registered and not combined with the computer program in a single application.

There are many occasions when the computer programs are updated or enhanced in the form of a new version. Do these updates / enhancements / new versions need to be registered? If so, what needs to be deposited? As mentioned earlier, Copyright protection is automatic from the time the work is created and hence it is not necessary to file new registration for updates and enhancements.

However, it is advisable to register the updates or enhancements for the same reason the original version was registered.

This would mean making of another deposit. As a practical rule, it is advisable to register those updates and enhancements that substantially differ from the earlier version.

If the revision takes place throughout the program, then the first and last 25 pages of source code plus the page containing the Copyright notice is adequate for deposit. If the revision does not take place throughout the program, then any 50 pages representative of revised material may be deposited.
 

Top

12. Is there a possibility of divulging the trade secrets through deposit of source code?


Although the Copyright Office has procedures designed to protect trade secrets but once the Copyright is registered, the work is open to public inspection. For this reason, it advisable, as aforesaid, only to file a small extract of the computer program rather than the full program itself. It is important however to know that the part of the computer program which is not being filed would remain the trade secret of the owner and can be subject matter of a protection against any person who wrongfully obtains and utilises the said program.
 

Top

13. In order to further ensure that the trade secrets are protected, is depositing of computer program in object code permissible?


By the recent amendments in the Copyright Act, a "Computer program" means a set of instructions expressed in words, codes, schemes or any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. The amendment, although enlarges the meaning of a computer program, it is still not very clear as to whether it includes both object code and source code.

However, keeping in mind the proclaimed object of the amendment, presumably the benefit of the Copyright Act will be available to both.

As per experts' opinion, since it is easier to determine from source code whether the deposit represents the copyrightable material, deposit of object code may be possible but registration presumably would be accepted pending assurance that the code does represent copyrightable material. Procedures for these do not exist at present with the Copyright Office.
 

Top

14. In some of the programs, the screen could be the most commercially significant aspect. Is it necessary to register the program screen separately from the underlying code?


Generally, all copyrightable expression embodied in a computer program; including screen displays, can be protected. However, unlike a computer program, which is a literary work, screen displays are artistic works and cannot therefore be registered in the same application as that covering the computer program. A separate application giving graphic representations of all copyrightable elements of the screen display is necessary.
 

Top

15. What notice needs to be put on computer program copies to seek Copyright protection?


When authority of the Copyright owner publishes a work, a notice of Copyright may be placed on publicly distributed copies. As per the Berne Convention for protection of literary and artistic works, to which India is a signatory, use of Copyright is optional. It is however, a good idea to incorporate a Copyright notice.
 

Top

16. How is a Copyright notice displayed?


A Copyright notice consists of the following:
The symbol c (letter c in a circle) or the word Copyright
The year of first publication, and
The copyright owners name.

An example of notice: (c)1998 Nasscom.
 

Top

17. What is an ideal place to display a Copyright notice?


The Copyright notice should be placed on computer program copies in such a way as to give reasonable notice of the claimant of Copyright. As an example, the notice could be placed on the title page of program's written documentation and at the user terminal at sign on. Failure to give notice of Copyright does not destroy Copyright protection provided:


the notice has been omitted from a relatively few publicly distributed copies;
Copyright registration is made within six years after first publication without a notice and a reasonable effort is made to add notice to copies already publicly distributed, or
the notice was omitted in violation of an express agreement, in writing, by which the Copyright owner authorized another to distribute the program publicly.
As already brought out earlier, as per the Berne convention, use of Copyright notice is optional.
 

Top
 

18. Who owns the Copyright in a computer program?
 

An individual author who writes a program initially is the owner of Copyright. A program developed by several individuals, in which the contribution of one author is not distinct from the contribution of the others i.e. a work of joint authorship, all the individuals are joint authors and own the Copyright jointly.
 

Top

19. If an employee/employees in a company develop a program, do they own the Copyright?


No. In the case of a program made in the course of author's employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the Copyright.
 

Top

20. Is there some special registration to claim Copyright protection for programs written by employees?


No, but the employer should be listed as the 'author' in Form IV (Application for registration of Copyright) and Statement of Particulars in the forms available with Registrar of copyrights. For this purpose, information at serials 7, 11, 12 and 13 in the Statement of Particulars should be carefully filled.
 

Top

 

21. For Copyright purposes, how is an 'employee' defined?

For the purpose of ascertaining whether a hired party is an 'employee' or an independent third party contractor, one has to consider that the hiring party has the right to control the means and the manner by which work is created. Some of the factors to determine if controls exist are-
where the programming is performed
whose equipment is used
the method of remuneration
the duration of relationship between the parties
whether the commissioning party has the right to assign additional projects
who provides the benefits etc.

Also note that no single factor will be determinative.
 

Top

22. If an independent third party develops a program for a company, who owns the Copyright?


Works created by third parties on commission do not automatically vest the Copyright in the commissioning party. If the third party is an independent contractor, it is essential for the commissioning party to obtain the Copyright through a written deed of assignment. It is a common misconception that the Copyright automatically belongs to the commissioning party. Thus it is only where the developer is an employee creating the work under a contract of service that the rights belong to the employer.
 

Top

23. What is the rule for the transfer of Copyright right?


The owner of the Copyright in an existing work or prospective owner of the Copyright in a future work may assign to any person the Copyright, either wholly or partially in the following manner -
for the entire world or for a specific country or territory; or
for the full term of copyright or part thereof; or
relating to all the rights comprising the Copyright or only a part of such rights.
 

Top

24. What is the mode of assignment?


Assignment is not valid till it is in writing, signed by the assigner or by his authorised agent. The assignment should identify the work and specify the rights assigned, the duration and territorial extent of the assignment. The assignment must specify the royalty payable, if any.
 

Top

25. Is it necessary for transfers of Copyright rights to be registered with Copyright Office?


There are no special forms for the transfer of Copyright rights. However, these details need to be recorded while registering Copyright at serial 11 of Statement of Particulars. The rules regarding transfers are complicated and should be discussed with an attorney.
 

Top

26. How long does the Copyright protection last?


For individual authors Copyright protection lasts for the author's life plus sixty years.
 

Top

27. How is Copyright infringed?


Copyright in work is considered to be infringed-
A. When any person without a license granted by the owner of the Copyright or the Registrar of Copyrights or in contravention of the conditions of a license so granted or of any conditions imposed by a competent authority under Copyright act -

does anything, the exclusive right to do which is, by Copyright act, conferred upon the owner of Copyright, or permits for profit any place to be used for the communication of the work to public where such communication constitutes an infringement of the Copyright in the work.

B. when any person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the Copyright, or by way of trade exhibits in public, any infringing copies of the work.

It is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure is sufficient to indicate that it is a copy.

Piracy in an alleged infringing work may be detected by making a careful examination of it to see whether any of the deviations and mistakes, which the licence permits, in the original have been reproduced into alleged infringing copy.
 

Top


28. What remedies exist for Copyright infringement?


Courts are empowered to grant the following relief:
Temporary and permanent injunctions
Impounding and destruction of all infringing copies, including masters
Actual monetary damages plus the infringers' profits
Statutory damages
Court costs and reasonable attorneys' fees.
 

Top

29. What are the powers of Copyright Law enforcement authorities?


For effective implementation of Copyright Act, the response of enforcement authorities to cases of infringement needs to be swift. Under Section 64 of the Copyright Act, 1957, any police officer, not below the rank of a sub-inspector, may if he is satisfied that an offence in respect of Copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found and produce them before a magistrate as soon as practicable.
 

Top

30. What are the actions that would facilitate action by enforcement authorities?


On receipt of any complaint regarding infringement of Copyright Act, all possible details including the name and address of the complainant should be noted.
During the search at the premise of the offender, provisions of the Copyright Law should be borne in mind and a comprehensive inventory of infringing materials should be maintained.
It is very important that care is taken to ensure that evidence is not destroyed accidentally.
All seized material should be produced before the court.
 

Top


31. What is done to the infringing copies seized during a raid by enforcement authorities?


Under Section 66 of the Copyright Act, the Court trying any offence, (whether the alleged offender is convicted or not) may order that all copies of the work in the possession of the alleged offender, which appear to be infringing copies, be delivered to the owner of Copyright.
 

Top

32. What role does Nasscom play in enforcement of the Copyright Law?


Nasscom runs an Anti-Piracy Hotline - 23010199 installed at New Delhi. You can also contact NASSCOM at antipiracy@nasscom.in. Anybody can report possible cases of piracy at this number. The person reporting cases of piracy may or may not disclose his identity. Reported cases of piracy are investigated by Nasscom and passed on to enforcement authorities for necessary action. Nasscom and Business Software Alliance (BSA), USA have formed a joint program of campaign against piracy.


NASSCOM undertakes training and education of police personnel in cases involving piracy.


In addition to the above, Nasscom conducts various programs on educating end users of software on legal use of software and common practices that could be adopted by end user organisations in proper management of software resources.
 

Top

33. What is software piracy? What does the Indian Copyright Law say about software piracy?

Software piracy is the reproduction, distribution or use of a software product without the expressed permission of its author. Software piracy is theft - stealing someone else's original idea and product. It comes in the following common forms:
 

End user piracy - end users (both home and corporate users) who are utilizing unlicensed software on their systems, or who have installed more copies than they are entitled to under their license agreements, e.g. a company with only one license installing the software on five PCs. This form of end user piracy is called under-licensing and is of grave concern to the BSA.
 

Hard disk loading - computer dealers pre-installing illegal copies of software onto PCs prior to sale. Some dealers use one legally acquired copy but install it on many machines. These PCs are usually sold without any form of licensing documentation or disks.
 

Software counterfeiting - the illegal duplication and sale of software in a form that is almost identical to the genuine product.
 

Internet piracy - the latest and fastest growing form of software piracy. Software programs are placed by third parties on the Internet for downloads free of charge or for a fee. Pirates tend also to use the Internet as a means of advertising to solicit sales.
 

Top

34. How are other countries implementing criminalization of corporate end user piracy?


Some 56 countries already provide for criminalization of corporate end user piracy. These include the US, UK, France, Hong Kong, Japan, Malaysia, etc. Criminal penalties provide a strong deterrence against corporate end user piracy.
 

Top

 

 
     
Marks & Rights

Marks & Rights (Attorneys and Legal Consultants)

India Office

42/2421, Thaliyath Buildings,
St. Benedict Road, Kacheripady,

Kochi, Kerala, India.Tel: +91-484-2395676, 2398676

E Mail: info@marksandrights.in

United Kingdom Office

N Ramdas , MA, MPhil, LLM, MCIArb,

Advocate (Supreme Court of India), Solicitor (England & Wales)

3 Brookfield Court, Woodside Grange Road, London N12 8TW

E-mail: nramdas@marksandrights.in

marksandrights.in All Rights Reserved . Site maintained and hosted by Human Mechanism