Software Protection in India-

by Durai on May 26, 2009

Copy right protection for Software-

Computer software is protected by Copyright Act[1] under the Indian legal regime under the garb of “literary work[2]. Section 2 (o) of the Act says,

“literary work includes computer programmes, tables and compilations including computer data bases.”

 Section 2 (ffc) of the Act says,

“computer programme” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.”

The protection is afforded by Section 13 (1)[3] of the Act which provides that copyright shall subsist inter alia in original literary works. Section 14 (b) of the Act speaks about the Copyright owner’s right as regards Computer programme it says,

Section 14 (b) in the case of a computer programme-

(i) to do any of the acts specified in clause (a);

 (ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme:

Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.”

Since a computer programme is covered by the Copyright Act, it will also be subject to the general principles of copyright law in India as laid down by the courts.

Registration is not mandatory-

Section 45 makes a provision for registration of the copyright. However, registration is not a prerequisite condition for protection of copyright[4]. However, it is advisable to get it registered as it is prima facie evidence of subsistence of copyright and admissible in evidence in all courts of law without further proof or production of the original[5].

Civil Remedies-

When copyright in any software has been infringed, the owner is entitled to all remedies by way of Injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right[6]. All infringing copies are deemed to be the property of the copyright owner who may take proceedings for their recovery[7].

Computer databases and software programs have been protected under the Copyright Laws in India and pursuant to this software companies have successfully curtailed piracy through court orders[8].

Defences[9]

            The making of copies or adaptation of a computer program by the lawful possessor of a copy of such computer program from such copy:

1) In order to utilise the computer program for the purpose for which it was supplied

2) To make back-up 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.[10]

These are the possible defence’s which may be taken in the case of violation of copyright.

Patentability of Software under the Indian legal regime-

The Patent Act prohibits patenting of “a computer programme per se”[11].  Therefore generally software is not patentable “other than its technical application to industry or a combination with hardware”[12]. However, after the defeat of Amendment 2004 which added proviso 3 (k) before the Parliament now it is very clear software “standing alone” is not patentable under Indian law.[13]However the recent controversy over the Indian Draft patent manual 2008 clause 4.11.7 with regard to Section 3 (k) needs a specific mention[14].

Information Technology and Software protection in India-

The Information Technology Act, 2000[15] is a generic legislation, which articulates on range of themes, like digital signatures, public key infrastructure, e-governance, cyber contraventions, cyber offences and confidentiality and privacy. The aims and objectives of the Act include enabling or facilitating the use of electronic commerce and providing equal treatments to users of paper-based documentation and to users of computer-based information[16]. The Act covers some computer related crimes and prescribes the following punishment for them.

  • Tampering with computer source documents [17]
  • Hacking with computer system [18]
  • Publishing of information which is obscene in electronic form[19].
  • Breach of confidentiality and privacy by disclosing any electronic information to any other person without consent of the concerned person[20]

Amendments to Section 43 comes as a welcome measure for Data protection-

Section 43 that has been widely interpreted as a clause to provide data protection in the country. This section has been improved to include stealing of computer source code[21] for which compensation can be claimed[22]. Data protection has now been made more explicit through amendment of this Section which provides for compensation to an aggrieved person whose personal data including sensitive personal data may be compromised by a company, during the time it was under processing with the company, for failure to protect such data whether because of negligence in implementing or maintaining reasonable security practices[23].

In the light of the above made observations it would be safe to conclude that “software” is more considered to be a literary work rather than a patent and mostly protected and litigated under the Copyright Act. The Information Technology Act which provides for criminal remedies has brought about certain Amendments for data protection but time only can answer whether it can satisfy the industrial requirements of a specific legislation protecting “software” and database.


[2] Section 2 (o) of the Indian Copyright Act 1955.

[3] Section 13. Works in which copyright subsists.– (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) sound recordings;

[4] Kumari Kanaka v. Sundararajan (1972) Ker LR 536; Sundaresan v. A.C Thirulokchander (1973) 2 MLJ 290.

[5] Section 48 of the Indian Copyright Act 1955.

[6] Section 55 of the Indian Copyright Act 1955 provides for “Civil remedies for Infringement of Copyright”.

[7] Section 58 of the Indian Copyright Act 1955 provides for “Rights of owner against persons possessing or dealing with infringing copies”.

[9] Section 52 of the Indian Copyright Act 1955 provides for “Certain acts not to be infringement of copyright”.

[10] Section 52 (aa) of the Indian Copyright Act 1955.

[11] Section 3 (k) of the Patents Act 1970 says “a mathematical or business method or a computer program per se or algorithms” are not patentable.

[12] A major amendment was introduced in Section 3 with respect to the patentability of computer programs through the Patents (Amendment) Ordinance on December 27, 2004. The Ordinance split the sub-section 3k into two- sub-section 3(k) and 3(ka). The excluded subject matters as originally contained in Sub-section 3(k) were provided in the new Sub-section 3(ka). They included ‘a mathematical method or a business method or algorithms’. The amended Section 3(k) read as follows:

‘(k) a computer programme per se other than its technical application to industry or a combination with hardware.’  The Amendment was however defeated before the Parliament and it is not a law.

[15] This Act is based on the Model Law on Electronic Commerce prepared by the United Nations Commission on International Trade Law (UNCITRAL) which was adopted by the UN General Assembly on 30th January 1997.

[16] Preamble of the Information Technology Act 2000.

[17] Section 65. Tampering with computer source documents. Provides punishment with imprisonment up to three years, or with fine which may extend up to two lakh rupees or with both.

[18]Section 66. Hacking with computer system. Provides punishment with imprisonment up to three years or with fine which may extend upto five lakh rupees or with both..

[19] Section 67 of the Information Technology Act 2000.

[20] Section 72 of the Information Technology Act provides punishment of imprisonment upto 2 years, fine upto 1 lakh.

[21] Section 43 h (v) “computer source code” means the listing of programme, computer commands, design and lay out and programme analysis of computer resource in any form.”

[22] Substituted vide Information Technology (Amendment) Act, 2008. Prior to substitution text read as under: – “he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.”

Leave a Comment

Previous post:

Next post: