Software can typically be understood as a set of instructions given to the computer in order to produce the desired result. Soft-lifting, hard disk loading and unauthorized renting are some of the most common methods of software piracy in India. Additionally, there is a great threat to the software industry due to the ease of duplication and high quality of pirated software. Thus, software protection through intellectual property rights is required to guarantee that the author is fairly compensated, as well as to promote future invention and ingenuity. 

Copyright protection under copyright laws is available only to the form or expression of an idea and not to the idea itself. Thus, the main object of copyright protection in a computer program or a software code is not its underlying idea, but the language of the computer which is used to express the idea. The Copyright Act, 1957 (“Copyright Act”) and the Patents Act, 1970 (“Patent Act”) govern the protection of intellectual property rights in software code in India. The software code itself is usually protected by the Copyright Act, whereas protection under the Patent Act is granted in cases of technical defects. 

What is software copyright?

Software Copyright is one of the most common tools used to protect software code. A software programmer owns the copyright of any program automatically as it’s written and it lasts until 70 years after the death of the creator/author. Earlier, the Copyright Act did not include the protection of computer codes because they were not viewed as fixed, tangible objects. However, in 1983 the protection under the Copyright Act was extended to include copyright over machine-readable software code; consequently computer programs were granted the same status of copyright as literary works. 

Why is Software Licensing important?

The creator/author already possesses copyright in the original work done by them, and its registration is just of evidentiary value to get adequate protection and remedies against programming code theft and other infringements. Copyrighting provides numerous rights to the original creator of the program viz:

  1. Right to reproduce the code in any form 
  2. Right to issue copies of the code 
  3. Right to make any modification or addition to the code
  4. Right to license and sell the code

Infringement of Software Copyright 

Literal copying happens when a creative, and substantial part of a software code is copied verbatim. Creativity doesn’t include complex or high quality work; it merely refers to the ingenuity of the programmer while writing the code. It is humanly impossible to avoid copying a few of the codes while running a program on a computer as some of the program gets automatically copied within the computer’s memory in order to enable the software to function.

Infringement of copyright also occurs by adapting the original version of the code without permission. For instance, if one rewrites or converts the code in one computer language into any other language it will also be deemed to be an infringement of software copyright because it will be considered as a ‘derivative’ work, requiring a licence from the original author. Thus, unlike other artistic works, software copyright is a complicated and developing field of law which is required to be sold with particular restrictions attached to emphasize permitted usage. 

Open source software

Generally “open source” can be defined as something which can be shared and modified easily because of the easy availability of its design. A software which carries a source code that can be inspected, modified, or enhanced by anyone is known as Open Source Software (“OSS”). OSS licenses grant users the permission to use OSS for any purpose whatsoever. OSS is beneficial to users and people therefore prefer OSS over any other software. Some of the benefits it provides to the users are: control, training, security, stability, community, etc. 

There is a misconception among people that open source means something that is free of charge, however it is not so. OSS programmers can charge money for the software they create or to which they contribute, but in some situations an open source license might require them to release their source code when they sell the software to others, due to which some programmers find that charging users’ money for software services and support is more lucrative. The software itself remains free of charge, and profit is earned by making others install, use, and troubleshoot it.

What are Creative Commons Licenses?

Creative Commons (“CC”) licenses are public licenses. They are used to limit the ambit under which others are allowed to copy the author’s work. The work of the author is protected through copyright automatically and permission is required from the author to interfere with the same. CCs are easy legal tools that grant copiers permission in advance to share and use an author’s work as per the author’s conditions. There are six different CC licenses: CC BY, CC BY-SA, CC BY-NC, CC BY-ND, CC BY-NC-SA, CC BY-NC-ND. 

The letter pairs indicate the conditions for use. CC BY is the most open licence which allows a user to redistribute, create derivatives, and use the code for commercial activities. CC BY-SA is also an open licence; “SA” indicates that the work should be shared under the same reuse rights as the original work along with the same CC licence permitting other users to further derive from the new derivative code. NC-ND is more restrictive and less open; “NC” stands for non-commercial use, and “ND” means no derivative works. NC CC licences can be used by others for non-commercial purposes only. ND CC licences require the users to use the original code without creating further codes that are based or derived from the original code.

Arbitrability of IP disputes

Settling a dispute through arbitration has a lot of advantages including saving time and ensuring confidentiality while also maintaining long-term business relations. Arbitration is very useful in India today due to the enormous pendency of cases in courts. However, arbitrability of any subject matter is dictated by a country’s public policy. Currently, there is no blanket bar on arbitrating IP disputes arising out of contracts in India. Contractual disputes involving royalty, geographical area, marketing and other terms of license agreements are freely arbitrable. However, a dispute as to the validity/ownership of an IP right can only be decided by the courts/assigned public administration, for the dispute would result in a judgment affecting the general public’s right to use the respective asset. 

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