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Intellectual Property Rights
The issue of Intellectual Property Rights (IPR)
is one of the most important aspects of the software
industry's business model. The problem of software
theft and "piracy" (illegal duplica-tion
of software) is affecting both large and small
software publishers.
Software piracy hurts us in two ways. First,
it creates a bad impression in the minds of pro-spective
clients who intend to outsource from India. In
an environment of piracy, a client would be very
reluctant to part with the source code of his
applications software, even for maintenance work.
Secondly, it is in the interest of the software
industry of India that piracy is checked. Obviously,
we too wouldn't want our own software being pirated,
thus losing revenue on it.
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Legal aspects
3.1 International
laws
3.1.1 What is TRIPS? What does it do?
The World Trade Organization (WTO) Agreement on
Trade-Related Aspects of Intellectual Prop-erty
Rights (the TRIPS Agreement or TRIPS) is the most
detailed and comprehensive multilat-eral agreement
on intellectual property yet negotiated. Its significance
is three-fold:
(1) In a single agreement, it establishes minimum
standards of protection for the most impor-tant
forms of intellectual property -- copyright and
related rights (including for computer pro-grams,
data bases, sound recordings, and films); trademarks
and service marks; geographical indications; industrial
designs; patents; layout designs of integrated
circuits; and undisclosed information.
(2) It establishes standards for enforcement
of those forms of intellectual property by incorpo-rating
commitments regarding domestic procedures and
remedies for enforcement of intellec-tual property
rights, including establishment of certain general
principles applicable to all IPR enforcement procedures;
and
(3) It provides a binding, enforceable dispute
settlement mechanism to resolve disputes regard-ing
WTO Members' compliance with the established standards.
4 Indian scenario
4.1 Protection under
Indian Copyright Act
The Indian Copyright Act was amended to extend
an even effective protection to computer programs
as literary works and for the protection of computer
generated works. The meaning of “literary
work” included works such as computer programs,
tables and compilations includ-ing computer databases.
The rights of the copyright holder, the rights
of the users, and the punishment on infringement
of copyright of software etc., are all extensively
covered.
India being part of Bern convention (1971) the
Rome Convention, Indian Copyright Act was amended
with broad-based definition of software and making
copyright infringement as a cog-nizable offence
is rated as one of the effective pieces of legislation.
The government has further strengthened the Copyright
Act with inputs from
Indian Federation against Software Theft (INFAST)
and National Association of Software and Services
Companies (NASSCOM) that regularly initiate action
against software pirates.
The copyright of computer software is protected
under the provisions of Indian Copyright Act 1957.
Major changes to Indian Copyright Law were introduced
in 1994 and came into effect from 10 May 1995.
These changes or amendments made the Indian Copyright
law, one of the toughest in the world.
The amendments to the Copyright Act introduced
in June 1994 were in themselves, a land-mark in
the India's copyright arena. For the first time
in India, the Copyright Law clearly ex-plained:
- the rights of a copyright holder
- position on rentals of software
- the rights of the user to make backup copies
- and most importantly the amendments imposed
heavy punishment and fines for in-fringement
of copyright of software.
Because most software is easy to duplicate and
the copy is usually as good as original, the Copyright
Act was greatly in demand. According to this Act,
the infringer can be tried under both civil and
criminal law.
According to section 14 of this Act, it is illegal
to make or distribute copies of copyrighted soft-ware
without proper or specific authorization. The
only exception is provided by section 52 of the
Act, which allows a backup copy purely as a temporary
protection against loss, distribution or damage
to the original copy. The 1994 amendment to the
Copyright Act also prohibits the sale or hiring,
or any offer for sale or hire of any copy of the
computer program without spe-cific authorization
of the Copyright holder.
A civil and criminal action may be instituted
for injunction, actual damages (including in-fringer's
profits) or statutory damages per infringement
etc. With these amendments, even the criminal
penalties have substantially increased. Section
63 B, stipulates a minimum jail term of 7 days
which can be extended up to 3 years. The Act further
states the fine ranging from Rs. 50,000 to 2,00,000.
4.2 TRIPS [1] Indian
status
TRIPS [1] - Computer Programs and Compilation
of Data and Layout -Designs of ICs: Indian Status
Under the TRIPS Agreement, besides General Provisions
and Basic Principles given therein, insofar as
Information Technology is concerned, Section-1
of Part-II entitled “Copyrights and Related
Rights” provide the necessary clauses with
respect to Computer Programs and Compi-lation
of Data (Article-10) and its relationship to Bern
Convention (Article 9). Section-6 covers provisions
for Layout-Design (Topographies) of Integrated
Circuits (Articles 35, 36, 37 & 38).
Insofar as substantive provisions of TRIPS in
Computer Programs and Compilation of Data are
concerned, Indian Copyright Act is broadly in
conformity. Work to draft sui-generis legislation
for protection of intellectual property in layout-design
of integrated circuits in line with the re-quirements
of WTO/TRIPS has begun.
4.3 WIPO Copyright
WIPO Copyright Treaty and WIPO Performances and
Phonograms Treaty: Indian Position
With the above two treaties adopted by World Intellectual
Property Organization (WIPO) or-ganized Diplomatic
Conference, the process of adapting the international
rights regime to the emerging Digital Age has
begun. A very significant factor that emerged
during the Diplomatic Conference is the realization
on the part of the world community about the ever
increasing need for striking a balance between
the rights of the authors/owners of copyright
and neighboring rights on one hand and the interests
of the society on the other, in the context of
framing new legislation nationally or internationally.
India is very closely following the rapidly emerging
technological and commercial scenario in the world
to take appropriate steps at the suitable time.
In this regard, it may be noted that India has
been elected Chairman of the newly formed WIPO
Standing Committee on Informa-tion Technology.
4.4 IPR promotion
campaign
IPR Promotion Program in IT: Initiative by DoE
In order to build up greater awareness, develop
insights in the complex mechanism of crea-tion,
ownership and protection of intellectual property
across the country and thereupon taken necessary
action and to respond to the needs of digital
era, Department of Electronics, Gov-ernment of
India has set up IPR Cell and is implementing
IPR Promotion Program. As a single-point IPR knowledge
resource, IPR Cell, with the participation of
various interest/knowledge groups, analyses worldwide
new developments on IPR in the context of Multime-dia/NII/GII/Emergent
Global Digital Economy [4]. These are published
and presented on vari-ous forums to sensitize
the country on the emergent scenario to take appropriate
initiatives.
In line with WIPO Treaties’ Digital Agenda,
a project has been initiated in the country to
con-ceptualize Electronic Right Management System
[5].
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