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Software Patent and Copyright Laws in India

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Software Patent and Copyright Laws in India


This Midterm Paper investigates the Intellectual Property Rights (IPR), primarily Copyrights and Patents in India. The Paper performs a Legal as well as Ethical Analysis of the Indian IPR Laws. It recommends improvements; especially regarding Global Issues related to Software Patents and IPR over the Net by substantiating evidence from the Embassy of India Policy Statements and from a reputed magazine in India, called India Today. The author fully acknowledges citations from all the references.

Intellectual Property Rights in India

There is a well-established statutory, administrative and judicial framework to safeguard intellectual property rights in India, whether they relate to patents, trademarks, copyright or industrial designs. Well-known international trademarks have been protected in India even when they were not registered in India. The Indian Trademarks Law has been extended through court decisions to service marks in addition to trademarks for goods. Computer software companies have successfully curtailed piracy through court orders. Computer databases have been protected. The courts, under the doctrine of breach of confidentiality, accorded an extensive protection of trade secrets. Right to privacy, which is not protected even in some developed countries, has been recognized in India. [1]

Protection of intellectual property rights in India continues to be strengthened further. The year 1999 witnessed the consideration and passage of major legislation with regard to protection of intellectual property rights in harmony with international practices and in compliance with India's obligations under TRIPS.

As regards the aspect enforcement, Indian enforcement agencies are now working very effectively and there has been a notable decline in the levels of piracy in India. In addition to intensifying raids against copyright infringers, the Government has taken a number of measures to strengthen the enforcement of copyright law. Special cells for copyright enforcement have been set up in 23 States and Union Territories. In addition, for collective administration of copyright, copyright societies have been set up for different classes of works.

Copyright Protection in India

India has one of the most modern copyright protection laws in the world. Major development in the area of copyright during 1999 was the amendment to the Copyright Act of 1957 to make it fully compatible with the provisions of the TRIPS Agreement. Called the Copyright (Amendment) Act, 1999, this amendment was signed by the President of India on December 30, 1999 and came into force on January 15, 2000.

The earlier 1994 amendment to the Copyright Act of 1957 had provided protection to all original literary, dramatic, musical and artistic works, cinematography, films and sound recordings. It also brought sectors such as satellite broadcasting, computer software and digital technology under Indian copyright protection. The Copyright Act is now in full conformity with the TRIPS obligations.

The other important development during 1999 was the issuance of the International Copyright Order, 1999 extending the provisions of the Copyright Act to nationals of all World Trade Organization (WTO) Member countries.

Commendable Software Copyright Protection in India

The Indian government has introduced an intellectual property law that protects inventions. This law, under the Copyright Act, 1957, provides copyright protection to computer software programs as well. Major changes to the Copyright Act were introduced in 1994, the most important being imposition of heavy punishment and fines for infringement of copyright of a software program. For the first time in India, the Act clearly explained the rights of a copyright holder, position on rentals of software and the rights of a user to make backup copies. [2]

According to the 1994 Act, those infringing the Act can be tried under both civil and criminal laws. This was done to curb the rampant practice of making unauthorized copies of software programs (which are easy to duplicate and the copy is usually as good as the original). According to Section 14 of this Act, it is illegal to make or distribute copies of copyrighted software 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 also prohibits the sale or hiring, or any offer for sale or hire of any copy of a computer program without specific authorization by the copyright holder.

Civil and criminal actions may be instituted for injunction, actual damage (including infringer's profits) or statutory damages per infringement. With these amendments, even criminal penalties have been substantially increased. The Act stipulates a minimum jail term of seven days, which can be extended up to three years, and an additional fine of up to Rs 2,00,000.

Patent Protection in India

The Indian Patent laws are neutral in their application to domestic or foreign inventions. Any disqualification, compulsory licensing, and exclusion from patentability, are provided for only in the larger interest to provide therein necessary and adequate safeguards for the protection of public interest, national security, bio-diversity, traditional knowledge, etc. These provisions are within the sphere allowed under Article 27, 30 and 31 of TRIPS.

Software Patent Protection in India – A Legal Analysis
In India, unfortunately, there is no provision for software to be patented. A software program is an algorithm and patent law does not protect algorithms per se. The term 'software' includes computer programs, databases, computer files, preparatory design material and associated printed documentation, such as users' manual.

Under Indian law, computer programs have copyright protection. But the IT industry says computer programs should have patent protection, which is more comprehensive than copyright laws. "Anything under the sun can be patented provided it satisfies the test of novelty, usefulness and non-obviousness. In recent times, the patent law worldwide has emerged as a powerful means of protecting computer programs as a patent has inherent advantages over a copyright," says Avinash Vashista, (CEO, neoIT, an e-services firm) in India Today.

Patents protect software against reverse engineering, where the source code of a program is recreated from the supplied object code. In its source form, a computer program is much easier to amend. Many software and hardware companies have so far taken advantage of the copyright law's lack of protection against creation of 'clones' through reverse engineering, says India Today. For example, under the Indian Copyright Act, copying from an engraving is an infringement of copyright, but an engraving produced independently from the same picture is not. Copyright laws generally do not protect the owner from independent creation or reverse engineering.

India Today says patent laws eliminate this loophole by providing protection irrespective of whether the work was independently created or copied. Even if the infringing device was created without the knowledge of the original device, it is an infringement of the patent's rights. Thus, a piece of software patented cannot be reverse-engineered and sold by another company.

Unfortunately, there are no guidelines or stated procedures followed by the Indian patent office with regard to computer software. The IT Act, 2000, also does not provide any lead in this direction. Consequently, Indian firms/individuals have to go to the US for getting their products patented-a cumbersome and expensive process.

In India, there is definitely a need for patenting software codes as a protection against software giants whose financial clout cannot be matched by an individual or a small company.

According to a report by software industry forum NASSCOM, in 2000 Indian companies introduced 122 software products in the domestic market, while foreign companies launched 158 software products. However, most Indian products don't have patent protection.

Software Patent Protection in India – An Ethical Analysis
Law and Morality

In India, Software Patent Law is undefined and has not caught up with the rapid pace of technological change. Since there is no law, Indian citizens and corporations should not indulge in blatantly copying software ideas and develop similar products on their own at a cheaper price. Individuals and corporations in India cannot assume that just because law permits a certain course of action that this action is morally acceptable. Because the Indian courts may allow an Indian software vendor to "reverse engineer" another company's product, it doesn't necessarily follow that this action is not tantamount to the theft of intellectual property. The individuals or corporations in India thinking of indulging in such immoral acts should ask the Ethical questions: What if everybody did what I did? What sort of world would it be? Whose rights have been violated? Whom could the action injure? Does the option chosen respect basic human goods? [3]

Theological - Ethics of ends - Utilitarianism (Consequentialism)

India has much looser protection of property rights than the United States. The Indians, for example have no laws that allow patenting of software products; this practice encourages others to use this information as a basis for further innovations or commercial applications. Once again invoking utilitarianism can develop a tenable rationale for this approach: By loosely protecting intellectual property Indian society benefits through the more rapid diffusion of technology. Thus, this scheme of non-existent patent protections in India will inevitably lead to beneficial social consequences. There are utilitarian arguments on the other side of the issue that stronger protection can be seen as an important incentive to stimulate innovations, which is precisely not happening in India.

Deontoloigcal - Ethics of duty - Pluralism (Duty-based)
Universal Acceptability

The criterion for differentiating between right and wrong in India, then, becomes the following: Do all rational beings accept this action or decision of not patenting software regardless of whether they are perpetrators or the victims? In other words, Indians should remember the "Golden Rule": Do unto others, as you would have them do unto you and if tempted to misuse software patents abroad ask the questions: Would the victim and other neutral parties consider their actions moral and above board? Is my action universally acceptable even to those who are directly affected by it?

Intellectual Property and the Internet in India
IPR and the Internet – A Legal Analysis
Cyber Squatting

Besides copying of software codes, the biggest challenge that law-enforcing authorities face today is that of cyber squatting, that is, illegal registration of Internet domain names of famous companies, brands and personalities. In a recent case (Yahoo Inc. Vs Akash Arora & Anr 78 - 1999), the Delhi High Court granted injunction in favor of Yahoo Inc. against the defendant. The defendant had created a Web-site yahooindia.com, nearly similar to the plaintiff's renowned yahoo.com, providing almost comparable services. The court granted an injunction restraining the defendants from using the name yahooindia.com.

The WIPO, a UN agency, had convened an international meet to develop recommendations covering intellectual property associated with Internet domain names, including dispute resolution. The recommendations have been made available to a new organization, the Internet Corporation for Assigned Names and Numbers (ICANN), which manages the Internet domain name system.

Cyber Laws

Being a new territory, Indian law-enforcing authorities need to address many gray areas. Security analysts feel that the Indian IT Act merely integrates law and technology and that there is no coherence between the two. They are also unhappy at the way the importance of intellectual property has been ignored. Though authentication and recognition of digital signatures and electronic documents under the IT Act will facilitate the process of improving and introducing more Net-specific laws, the laws covering intellectual property over the Net are inadequate.

IPR and the Internet – An Ethical Analysis
Deontoloigcal - Rights-based (Contractarianism)
Rights

In India, because of absence of concrete laws for protection of personal information over the Net, it seems essential to formulate the scope of an individual's "information rights," that is, the rights that individuals in India should possess regarding their personal information over the Net that is scattered about in various databases. It can be plausibly argued that at a minimum every person in India deserves a right to the privacy, accuracy, and security of such information over the Net. The data subject in India should have the right to have its data maintained in a way that keeps it confidential, accurate, and secure over the Net.

Justice

Equal or universal access to the emerging information "highway" for example, is an important justice issue for a poor country like India. Justice as fairness seems to demand universal access for all persons regardless of income, background, or location in India.

Conclusion

The Government of India has taken several measures to streamline and strengthen the intellectual property administration system in the country. As regards the aspect enforcement, Indian enforcement agencies are now working very effectively and there has been a notable decline in the levels of piracy in India. It is to be noted that 1999 has been a year of great coherence of political will, resulting in the passage of major IPR laws and work toward the establishment of an effective administration mechanism.

Based on the aforementioned Legal and Ethical Analysis, it is imperative for India to enact laws that guarantee Patent Protection for Software and strengthen its IT Act to provide adequate IPR Laws for the Net.

Citations

[1] EMBASSY OF INDIA, “Policy Statements”

[2] R. Srinivas, “INTELLECTUAL PROPERTY – Protect Your Product”

[3] From a revised and modified version of “Frameworks for Ethical Analysis,” Chapter 2
of Ethical aspects of Information Technology. (Prentice Hall)

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