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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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26. How long does the Copyright protection last?
For individual authors Copyright protection lasts for the author's
life plus sixty years.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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