By Aarti Sahu
Copyright is a form of intellectual property right commonly 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.
Copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works. Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of Section 14 of the Act. These rights can be exercised only by the owner of copyright or by any other person who is duly licensed in this regard by the owner of copyright.
These rights include the right of adaptation, right of reproduction, right of publication, right to make translations, communication to public etc.
A comparative history of Copyright in India
Copyright law entered India in 1847 through an enactment during the East India Company’s regime. According to the 1847 enactment the term of copyright was for the lifetime of the author plus seven years post-mortem. But in no case could the total term of copyright exceed a period of forty-two years. In 1914, the then Indian legislature enacted a new Copyright Act which merely extended most portions of the United Kingdom Copyright Act of 1911 to India.
Review of Literature
McJohn Stephen M., Northern Journal of Technology and Intellectual Property, 9(4) (2011) 312-324; discusses notable intellectual property decisions in 2010 in the United States. Viewed across doctrinal lines, some interesting threads emerge. The scope of protection was at issue in each area, such as whether human genes and business methods are patentable, whether a product idea may be a trade secret, and where the constitutional limits on copyright legislation lie.
Ruse-Khan Henning Grosse, American University International Law Review, Spring 2011; emphasizes the importance of strong IP enforcement standards for international trade in IP protected goods. The controversy over trans-shipment of generic drugs from India to various developing countries seized while in transit through ports of EU member states demonstrates this potential.
Pereira Alexander L.D., Computer Law & Security Review, 27(2) (2011) 175-179; Competition law is considered that requirements of competition laws shape IP regulations, but the internal limit of protection therein identified are not enough to safeguard concerns of competition law. European Court held that, in exceptional circumstances, IP holders with market dominant position can be compelled to grant licenses of IP protected goods, such as copyrighted information and software.
In Tata Consultancy Services v. State of Andhra Pradesh, the Supreme Court considered computer software as ‘goods’ and stated that notwithstanding the fact that computer software is intellectual property, whether it is conveyed in diskettes, floppy, magnetic tapes or CD ROMs, whether canned (shrink-wrapped) or uncanned (customised), whether it comes as part of the computer or independently, whether it is branded or unbranded, tangible or intangible; is a commodity capable of being transmitted, transferred, delivered, stored or processed, etc., and therefore, as a ‘good’ liable to sales tax.
Significance of the Problem
The study tries to dwell copyright laws in India and U.S.A. for last two decades. In India software are protected under copyright act but this protection is limited. Copyright in software is necessary because of (i) economics: other can access without payment; (ii) Competition: competitor can make competing product easily.
But, the copyright law does not protect an idea, procedures, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, or embodied in an otherwise copyrightable work. Concept or idea of algorithm is not protected. However, U.S. laws provide protection under copyright act in more liberal manner.
Protection under Patent Act is limited option. In India, software are not protected under Patents Act, 1970 though this issue has been raised in Parliament but the amendment was rejected. However, software are protected under U.S. Patent Act.
Researcher in this paper will focus the measures as to why in India the amendment in Patent Act was rejected and the consequences relating the same. And the reasoning behind the protection given in U.S. with the help of Case laws.
Research Hypothesis
- Copyright laws for software gives better protection in U.S.A. as compared to India.
- Copyright laws in India play a very important role in India.
- There exist major loopholes in protection in Copyright laws in India. Hence, amendments are required.
- Legal framework provides better protection for copyright laws in India. Hence, barriers restricting it should be removed.
Research Objective
- To evaluate copyright laws for software protection in India and U.S.A.
- To emphasize the importance of copyright laws for software in India.
- To find out loopholes in copyright laws for software in India.
- To suggest measures for amendments in copyright laws for software India.
- To find what are the barriers for India that restricts in providing better protection in India.
- To give suggestions for the better copyright laws for protection of software in India.
Findings of the Study
US route gives judges more freedom to assess ‘fair use’ and possibly extend these factors to ever new areas of technology and copyright content. On the other hand, the Indian boundaries defined for ‘fair dealing’ appear to be more societal and friendly to the common man.
This being said, however, it appears that the US test may tend to ignore the commercial implications that fair dealing might have upon such use of a work. The balancing act, at least for the Indian legislation, appears to have been found in the conjoint application of the two.
Indian courts have now, incorporated vide reference, the Folsom v. Marsh test, while adjudging, if fair dealing was in fact ‘fair’ to the real commercial implications that the author suffers. This is treading a fine line, whereby, the exception enumerated in the legislation needs to be satisfied, before the quantitative estimations of the impact of the fair dealing upon the qualitative exercise of the author’s right can be analyzed.
It appears that, just as the Berne Convention made copyright a sort of universal right, the developing jurisprudence surrounding fair use and fair dealing is bringing about parity in the stance that nations take towards protecting rights of intellectual property owners – thus leading to possible uniformity in the manner courts across different jurisdictions are likely to adjudicate disputes.
Conclusion
The importance of IPR and their protection is acknowledged the world over as essential to business. In tune with the world scenario, India too has recognized the value of IP, which recognition has been consistently upheld by legislators, courts and the industry.
India is now a signatory to various IP treaties and conventions. This has helped India become more attuned to the world’s approaches and attitudes towards IP protection. India has already taken steps to comply with its obligations under TRIPS, and the Indian IP law regime is almost at par with the regimes of many developed nations. Historically, the enforcement of IPRs in India was not particularly effective.