WHAT IS COPYRIGHT? by Laith Mohammed Murad
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
No. Copyright applies to both published and unpublished
works.What are the rights available
through Copyright protection?
Copyright owners have the exclusive
right to do or authorise 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
to perform the work in public, or communicate it to the public;
to make any cinematographic film or sound recording in respect of the
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
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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
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. 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 defences. A
licensee has only those rights that are specified in the license
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.
should I obtain Copyright protection for my company's
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
Is it true that I do not have to
register my program with the Copyright Office to get Copyright
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.
way would registration with the Copyright Office be
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
How do I register a program with the Copyright
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
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
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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
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.
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.
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.
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.
In order to further ensure that the trade secrets are
protected, is depositing of computer program in object code
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
However, keeping in mind the proclaimed object of the amendment,
presumably the benefit of the Copyright Act will be available to both.
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.
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
What notice needs to be put on
computer program copies to seek Copyright protection?
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
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How is a Copyright notice
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: © 1998
Nasscom.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
the notice has been omitted from a relatively few publicly distributed
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.
Who owns the Copyright in a computer program?
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.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.
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.
For Copyright purposes, how is an 'employee' defined?
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
who provides the benefits etc. Also note that no single factor
will be determinative.
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independent third party develops a program for a company, who owns the
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.
What is the rule for the transfer of Copyright
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
What is the mode of
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 must specify the royalty payable, if
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.
How long does
the Copyright protection last?
For individual authors Copyright
protection lasts for the author's life plus sixty years.
How is Copyright infringed?
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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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
Actual monetary damages plus the infringers' profits
Court costs and reasonable attorneys' fees.
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.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
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
All seized material should be produced before the court.
What is done to the infringing copies seized during
a raid by enforcement authorities?
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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
What role does Nasscom play in enforcement of
the Copyright Law?
Nasscom runs an Anti-Piracy Hotline installed at
New Delhi, 301 5419 and a toll free hotline 1-600-334455. Anybody can report
possible cases of piracy at these numbers. 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