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 COPYRIGHT LAW

COMPUTER PROGRAMME AND COPYRIGHT LAW

BA.LL.B. (Hons.)

2017-18

SUBMITTED TO: SUBMITTED BY:

PRABHAT SAHA AYONIJA

43
ASST. PROFESSOR BA.LLB IX Sem

DEPT. OF LAW 14137LA001

B.H.U ROLL NO.-1

LAW SCHOOL BANARAS HINDU UNIVERSITY

ENROLLMENT NO.- 371954

ACKNOWLEDGEMENT

I Ayonija of BA.LLB (hons.) pay my gratitude to my subject teacher. Asst.

Prof. Prabhat Saha for Copyright Law project. Without his help this endeavour
would not have been possible. I’d also like to thank my friends & class fellows,
who helped me in understanding the topic & gathering resources for the
completion of my project. I would also like to mention that the project has
borrowed its content from various books and Website.

44
 CONTENT

HEADING PAGE

1. COPYRIGHT IN COMPUTER PROGRAMME 3

2. COPYRIGHT LAWS ON COMPUTER 4

PROGRAMMES & RECENT LEGISLATIVE
ACTIVITY

3. MEANING OF SOFTWARE/PROGRAMME 6

4. COMPUTER PROGRAMMES 7

5. RECORDED IN WRITING OR OTHERWISE 8

6. COPYRIGHTABILITY OF COMPUTER SOFTWARE 10

45
 7. DURATION OF COPYRIGHT 13

8. RISRICTED ACTS OF COMPUTER SOFWARE 15

9. INDIAN COPYRIGHT (AMENDMENT) ACT 1994 & 18

COMPUTER SOFTWARE

10.BIBLIOGRAPHY 21

COPYRIGHT IN COMPUTER PROGRAMME

One of the factors which has contributed greatly to the projection of the topic of
copyright into a central position on the legal stage in recent years is the
realisation of its potential application to the problems posed by the use of
computers.

There are two distinct aspects of the matter - both the extent to which computer
programs can be protected against copying and other unauthorised acts, and also
the extent to which copyright works, generally in the literary fields, can be
protected from unauthorised computer use.

Computers have been with us in a commercially viable for less than thirty years,
but the rate of expansion in their use has been phenomenal. In this area of
technology as in a number of others there has been a reduction over the years in
the physical size and relative cost of the equipment and a consequent increase in
their accessibility. Computer technology has revolutionised our lives directly
and indirectly over the last quarter of a century, but copyright law has only
recently come to terms with this technology.

The magnitude of the problem to provide copyright protection to computer

programs is staggering: it has been estimated that some 15,000 computer

46
programs are written each day in the United States and the total value of this
software is in the tens of billions of dollars.1

While it has been recognised world over that the computer technology is best
protected by the use of an array of legal rights, for example contract, patents,
trade secrets and trademarks, it has been accepted widely that copyright
protection normally would be the most important mechanism to rely upon.

This projects, therefore, examines at length the question of copyrightability of

computer generated works, computer programs etc. It discusses the question of
duration, joint-authorship and works produced during the course of an
employment. It also makes an attempt to evaluate the recent legislative
amendments undertaken by India with regard to copyright in
softwares/programmes.

COPYRIGHT LAWS ON COMPUTER

PROGRAMMES & RECENT LEGISLATIVE
ACTIVITY
'Progammes' is a general term for what is fed into a computer, whereas the
machines themselves are known as the 'hardwares'. Thus, the question of the
extent to which proprietary rights may exist in computer programs has become
an important issue. But the U.K. copyright Act 1956 and its Indian counterpart,
Indian Copyright Act 1957 and similarly the U.S. Copyright law prior to 1976
revision, were all silent on the question of computers probably as it were still
early days for computers.

United States was the first country which recognised that the computer
databases represent an increasingly significant and valuable form of
intellectual property, which the 1976 House Report specifically declared to be
copyrightable as 'literary works'2. With respect to computer programs the report
was a bit more guarded; it expressed the intention to cover them as 'literary

1
Jostens, Inc. V. National Computer Systems, Inc. (Minn) 318 NW 2 d 691, 214 USPQ 918, 33 UCCRS 1642
30 ALRU th 1229.
2
The House Report on the 1976 Act states : 'The term "literary work" does not connote any criterion of literary
merit or qualitative value: it includes catalogs, directories, and similar factual reference, or instructional works
and compilations of data' House Report No 94-1476; Also see Koontz V. Jaffarian, 617 F Supp 1108 (ED va
1985), affd, 787 F 2d 906 (4th Cir 1986).

47
works' to the extent that they incorporate authorship in the program's expression
of original ideas, as distinguished from the ideas themselves3. Following the
recommendations of the National Commission on New Technological Uses of
Copyrighted Works (CONTU), the U.S. Congress amended the statute in 1980 4,
adding a definition of 'computer' program' (a set of statements or instructions to
be used directly or indirectly in a computer to bring about a certain results')5,
and making clear that, although they were not expressly listed among the seven
categories of copyrightable works, computer programs were eligible for
copyright protection as literary works6. It has remained for the courts to
determine whether particular types of programs were entitled to copyright
protection.

In United Kingdom also, the Copyright Act 1956, the former major source of
copyright law, was silent on the question of computers as it were still early days
for computers when the Act was brought into force. However, growing disquiet
in the computer industry, and the perceived reluctance of the courts to come to
grips with the question of copyright protection of computer programs, caused an
amending piece of legislation to be passed. Known as the Copyright (Computer
Software) Amendment Act, 1985. This Act confirmed that computer programs
and works created using a computer or stored in a computer were protected by
copyright. The Copyright, Designs and Patents Act, 1988 whose principal
provisions as they relate to copyright came into force on 1 August 1989 further
consolidated the copyright protection of computer programs and works created
using computers or generated by computer, by and large satisfactorily. There
are, however, as detailed later in this chapter, some areas of doubt which have
to be resolved by the courts.

As far as Indian Copyright Act, 1957 is concerned, for the same reasons as its
British counterpart; to begin with it did not have any provision granting
protection to computer software. But in the early years of the last decade itself,
the need of giving some copyright protection to the software was recognised by
us since the cost of developing a program is far greater than the one involved in
duplicating it, this works as an incentive to pirates to go in for unauthorised
duplication at the cost of original creator of a program. Therefore, the programs
will be disseminated only if the creator can recover all his costs plus some kind

3
House Report No 94-1476 3 September 1976, P. 54.
4
Pub. L No. 96-517, 12 December 1980, 94 Stat 3028.
5
U.S. Copyright Act 1976, Section 101.
6
Apple Computer Inc. V. Franklin Computer Corp. 714 F 2d 1240 (3rd Cir 1983).

48
of profit and he can spread his cost over sale of number of copies of his work
with some kind of protection from unauthorised duplication since these works
are the product of great intellectual effort and their utility cannot be questioned.
As a result of this recognition, the Copyright Act was amended in 1983 to give
protection to software by including it in the definition of 'literary' 7 works. This
was also justified because India did play a leading role in the Paris Revision of
Berne Convention in 1971.

The Copyright (Amendment) 1994 has also significantly altered the Indian
copyright law and brought several areas in conformity with Uruguay Round
Agreement on Trade - Related Intellectual Property Rights (TRIPS). These
changes are of particular importance to the computer industry in that a new
'rental right' of computer programs has been created, the traditional fair dealing
exception has been eliminated and radical new penalties have been imposed on
users of infringing programs.

MEANING OF SOFTWARE/PROGRAMME
For effective protection, it is essential to know in material details as what is
sought to be protected. Therefore, there must be a workable definition of
software program which qualifies for protection. Computer software is
explained to constitute the following three elements:

(i) "Computer program" - which is a set of instructions capable, when put

in computer, or causing a machine having information processing
capabilities to indicate, perform or a achieve a particular function, task
or result;
(ii) "Program Description" - which is a comprehensive procedural
presentation in verbal or other form, in sufficient detail to determine a
set of instructions constituting a corresponding computer program;
(iii) "Supporting Material" - which is any material other than a computer
program or a program description, created for aiding the
understanding or application of a computer program, i.e. problem
descriptions and user instructions.

Thus, the definition of software covers not only the actual software but also
switching operations of hardware components according to a particular program
and the action which translates other programs expressed in a programming

7
Indian Copyright Act 1957, Section 2 (0).

49
language into the final form". It also covers many other kinds of programs
complementing the hardware in a computer so as to make easy the carrying out
of the new programs in view of this comprehensive definition, it is important to
protect the rights of the individuals and the firms which develop software.

COMPUTER PROGRAMMES
"Computer software", thus in all the three countries which includes computer
programs, computer files and associated printed documentation such as manuals
for uses. There has never been in both United Kingdom as well as U.S. & India
any difficulty with regard to printed materials as these have been and continue
to be protected by copyright as literary works in the case of diagrams or
flowcharts, as artistic works.

As far as Indian definition is concerned, the 1983 amendment in 1957 Act has
now provided in explicit terms a definition which is similar to one in United
States. The "literary work", the amendment laid down includes "tables and
complication and computer programs that is to say, programs recorded on any
disc, tape, perforated media or other information storage device, which, if fed
into or located in a computer or computer based equipment is capable of
reproducing any information."8 The section was amended again in view of the
concerns expressed by societies against theft of computer software and wider
and more simpler definition has now been provided by the 1994 Amendment. It
lays down that "literary work' "includes computer programs, tables and

8
Indian Copyright Act 1957, Section 2 (0).

50
compilations including computer data basis."9 ' Further unlike the and United
Kingdom and United States, the 1994 Indian Amendments also give definitions
of both 'computer' as well as "computer programs," "computer," it says,
"includes and electronic or similar device having information processing
capabilities".10 "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 task or achieve a particular
result".

RECORDED IN WRITING OR OTHERWISE

It is a pre-condition of copyright protection that there be some physical
manifestation of the work. The 1988 U.K. Act provides in explicit terms that
copyright does not subsist in a literary, dramatic or musical work unless and
until it has been recorded in writing or otherwise. 'Writing' is defined by section
178 to include any form of notation or code, whether by hand or otherwise and
regardless of the method by which, or medium in, or on which , it is recorded.
This is a very broad definition and as a result software will be protected whether
it is written out in long hand, entered on to a disc or tape or any other means of
storing the computer software. However, it is absolutely clear that if the
software, or any part of it, is only planned mentally, then copyright protection
will not be given to that work unless and until it is recorded in one of the means
included by the Act. Whilst not specifically set out in the Act, it is in the nature
of an artistic work that it should be in some visible form.11

In the United States also, there is a great emphasis on some form of fixation
before a work can be entitled to copyright protection. The U.S. Act, therefore,

9
Ibid., Section 2 (0).
10
Ibid. Section 2(ffb).
11
ROBBESTSON, RONALD, LEGAL PROTECTION OF COMPUTER SOFTWARE, (1990), 1st ed., Longman
Practitioner Service, at p. 41.

51
lays down that the work must be fixed in any tangible medium of expression,
now known or later developed, from which it can be perceived, reproduced or
otherwise communicated, either directly or with the aid of a machine or
device.12 A work is "fixed" in any tangible medium of expression when its
embodiment is sufficiently permanent or stable to permit it to be perceived,
reproduced or otherwise communicated for a period of more than transitory
duration.13 The purpose of this broad definition was to overrule the former
doctrine that copies, in order to be entitled to copyright protection, must be
visually perceptible, that is, capable of being seen and understood by the naked
eye.14

Thus, under the Copyright Act of 1976, it makes no difference what the form,
manner or medium of fixation may be, whether it is in words, numbers, notes,
sounds, pictures, or any other graphic or symbolic indicia, whether embodied in
a physical object in written, printed, photographic. sculptural, punched,
magnetic or any other stable form, and whether it is capable of perception
directly or by means of any machine or device now known or later developed.15

The Indian law on the point is also similar to that of U.K. and U.S.A. as it also
requires some form of writing, fixation or otherwise.

12
U.S. Copyright Act 1976, Section 101 (a).
13
Ibid, Section 101 A television news feature became fixed when it was recorded on videotape even though it
was erased after seven days since seven days is a period of more than "transitory duration" Pache & Souther
Co V. Duncan (CA 11 Ga) 744 F 2d 1490.
14
White-Smith Music Co. V. Appalo Co. 209 USI, 52 I.Ed 655. holding that perforated piano rolls were not
copies of musical composition and could not be usually perceived from piano role.
15
The technology used in videogames has been cited as an example of a later developed medium of
expression. Midway Mfg. Co. V. Artie International, Inc (ND III) 547 F Supp. 999.

52
 COPYRIGHTABILITY OF COMPUTER
SOFTWARE
Source and Object Code:

Applying the above principles it can be seen that copyright will protect
computer software in the three countries which is recorded in 'writing' (as
defined widely in the U.K. Act of 1988) and which is original (which has also
been given a wide meaning in the three jurisdictions by their courts). Now, it is
necessary to say something of the various ways in which the term 'computer
software' can be understood. At what is often known as a high level software is
produced by the programmer in source code. This can be in one of many
computer languages, which each consist of a series of commands addressed to a
computer. This can be written out in longhand or it can be entered directly into a
computer. It is often said to be human readable, since many computer languages
use English words and expressions set out in continuous lines of text.

However, the computer can't cope with source code. Source code must be
converted into a form which a computer can understand. To this end, source
code is 'compiled" or 'assembled' by means of appropriate software to become
the object code version, often said to be machine readable or low level. At this

53
stage, the computer software no longer has the format of human language but is
series of digits, either 0 or 1 and grouped together in bytes, each of which is the
smallest possible store of information, e.g. a single character. A byte will
normally consists of eight individual bits, each bit being a 0 or 1.

There seems no reason to understand that the 1988 Act of United Kingdom does
not protect computer program in any of these forms. The Act certainly unlike
the 1994 Indian Amendment Act gives any definition of computer programs but
wherever expression computer program is used, it is used in a very wide &
broad sense. Section 21 (4) states that in relation to a computer program, a
translation includes a version of the program into which it is converted into or
out of a computer language or code or into a different language or code or into a
different computer language or code, without specifying whether it is intended
to exclude a particular variety of computer language or code at or below a
certain level. This certainly includes, for example, the compiling of source code
into an object code, or the decompiling of object code into source code as well
as converting a computer program written in one computer language into
another.

It is important to be aware, however, that courts in other jurisdictions have not

always accepted this British position that all forms of computer programs are
protected by copyright. For example in Computer Edge Pay Limited V. Apple
Computer Inc.16, the High Court of Australia decided that copyright did not
vest in the object code form of original source code programs, but the effect of
this decision was subsequently changed by Statute. On the other hand, in the
United States, the courts have, after some initial hesitation,17, been prepared to
accept that software in objective code can be protected by copyright. Since
"object code”18 is not readable by people, the question in the U.S. has been
raised as to whether a computer program written in object code is a " writing"
within the meaning of the Copyright Act and, since such programs are normally
written in source code and compiled by a separate program into object code,
there is a further question whether such programs are authored by a person,
rather than a machine.”19 It has been suggested that even if object code is
analogized to a recording of a photograph record or a tape in a form that the
16
65 ALR 33 (HCA 1986).
17
See, Apple Computer Inc. V. Franklin Computer Corp., Supra note 8.
18
Object lode is a binary code consisting of a series of zeros and ones. The central processing unit of a
computer recognises each statement in object code and in response performs one simple operation.
Consequenlty, it takes hundreds of object code statements to execute even a very simple program.
19
"Copyright Object Code : Applying old Legal Tools to New Technologies' ed. 4 Computer LJ 421 (1983).

54
machine can recognize and play back such items being clearly copyrightable -
the transposition of the binary code into a circuit design that replicates the on -
off switching of the binary form object code using sophisticated optical,
electrical, photographic, and other processes raises serious questions of
copyright protectability since the work is not a ‘writing’ but is, in microchip
form, a part of a machine, a utilitarian object and hence not normally
copyrightable.20 Some writers have, therefore, concluded that object code is
probably not protected by copyright law under the Copyright Act of 1976, as
amended by the Computer Software Copyright Act of 1980.

It has been suggested that since the 1980 amendments did not change the
definition of "copies" in the 1976 Act, the 1980 Act merely reinforces the view
that copies of programs must be in intelligible form for them to be protected
under the copyright laws.21

But there is a contrary authority as well. Thus, it has been said that the 1980
Computer Software Protection Act, by defining a computer program as a 'set of
statements or instructions to be used directly or indirectly in a computer to bring
about a certain result22, includes both source code "statements used indirectly"
in a computer) and object code ("instructions" used directly in a computer), as
well as microcode, whether Rom or Ram resident.”23 The courts, too have
generally recognised that copyright protection extends to programs in object
code form stored on tapes, discs, or Read only Memory (ROM) chips, since
such "works" are fixed in a tangible medium and can be reproduced with the aid
of a machine.24

A computer program, whether in object code or source code, is a "literary work"

within the meaning of the copyright Act and is protected from unauthorised
copying, whether from its objects or source code version.25 It has been further
held that where plaintiff had copyrighted the source code of various operating
programs such copyright protected the object code as well.26

20
Mantle, "Trade Secret and Copyright Protection of Computer Software" 4 Computer LJ 669 (1984).
21
Stern,' 'Another Look at Copyright Protection of Software : Did the 1980 Act do anything for object Code?" 3
Computer LJ 1 (1981).
22
U.S. Copyright Act 1976, Section 101.
23
MacGrady, "Protection of Computer Software - An Update and Practical Synthesis", 20 Houston L Rev 1033
(July, 1983).
24
Apple Computer, Inc. V. Franklin Computer Corp., Supra note 8; William Electronics, Inc. V. Artistic
International, Inc. (CA 3 NT) 685 F 2 d 870.
25
Ibid
26
GGA Corp. V. Chance (FND Cal) 217 USPQ 718.

55
The Indian Copyright Amendment Act of 1994 has taken care of aforesaid
problems and has provided that literary work includes a computer programme.
The definition of 'computer programme' is wide enough as noted above to
include both object code as well as source code since there has not been any
litigation on this issue, there is no judicial pronouncement on the question in
India.

DURATION OF COPYRIGHT
If copyright vests in a work, then it will vest as from the moment of that work's
creation. Unlike U.S., under the English & Indian laws, copyright begins
automatically without the need for compliance with any formalities.

In relation to a computer program, copyright expires at the end of the period of

50 years from the end of the calendar year in which the author dies.27 In U.S.,
generally it is for 75 years from the first publication. It does not matter that the
first owner of the copyright is a different person from the author : thus, if a
computer programmer is under a contract of employment with a company, and
produces a computer program in the course of his employment, then according
to the normal rules, the first owner of the copyright will be the employer not the
author but the duration of that copyright will be worked out by reference to the
lifespan of the employee programmer plus 50 years.

The right for exploitation of a work under the Copyright Acts, are given for too
long a time. It is submitted that with the fast changing reproduction technology,
the authors can get returns in the market much faster than their counterparts
could get in past. Therefore, there is a need to reduce this time for exclusive use
of a work by the author, more so in the case of a fast-changing electronic
technology and computer software. It is, therefore, suggested that five or seven
years period will be sufficient for the creator of software to get returns in the
market with fair share of profit. This has the effect of modifying the present

27
U.K. Copyright, Designs & Patents Act 1988, Section 12(1); Indian Copyright Act 1957, Section 22.

56
system where the protection is available to the authors for the lifetime and until
fifty years after their death from the beginning of the calendar year next
following the year in which such author dies and in case of institutional work, it
is available for fifty years from the beginning of the calendar year next
following the year in which the work is first published.28

(i) Computer - Generated Works :

Section 12(3) of the U.K. Act of 1988 provides that if a work is computer
generated, copyright expires at the end of the period of 50 years from the end
of the calendar year in which the last of the author dies.

(ii) Works of Joint Authorship :

It should be noted that different provisions apply in relation to a work of

joint authorship, where in general the copyright will last for a period of 50
years after the end of the calendar year in which the last of the author dies.29

Where work is of unknown authorship, then copyright expires at the end of the
period of 50 years from the end of the calendar year in which the work is first
made available to the public. In both U.K. & India, the identity of an author will
be regarded as unknown if it is not possible for a person to ascertain his identify
by reasonable inquiry and if the identify of an author is once known, a work
cannot subsequently be regarded as unknown.

28
Ibid.
29
U.K. Copyright, Designs & Patents Act 1988, Section 12(1); Indian Copyright Act 1957, Section 22.

57
 RESTRICTED ACTS OF COMPUTER
PROGRAMS
The copyright laws in the three countries give the owner of copyright the
exclusive right to do certain acts and these are referred to as acts restricted by
the copyright. Of the acts restricted by copyright, three are worthy of special
mention as far as computer programs are concerned, these are :

a) Copying,
b) Issuing copies to the public, and
c) Making an adaptation

It may seem strange, but the word 'copy' is new in the U.K. Act of 1988, as the
word used in the Copyright Act of 1956 was 'reproduce'. However, copying in
relation to a literary, dramatic, musical or artistic work means, by Section 17(2),
reproducing the work in any material form which includes storage in any
medium by electronic means; for example, making a copy of a computer
program on a magnetic disk. Additionally, in relation to all forms of copyright
work, copying includes making copies which are transient or incidental to some
other use of the work (Section 17(6). This implies that the act of loading a
computer program into a computer only for the purpose of running the program
will be considered to be making a copy of the program, even though this 'copy'
will be lost as soon as the computer is switched off. In this way, any
unauthorized use of a computer program will infringe the copyright in that
program.

58
Issuing copies of a work to the public is a restricted act and will infringe
copyright if done without the permission of the owner of the copyright. As
regards computer programs, sound recording and films, Section 18 widens this
restricted act to include rental of copies to the public. However, this restricted
act is only relevant in the context of a particular work if copies of that work
have not previously been put into circulation. The restricted act would apply to
a situation where a person acquires a computer program which is not available
to the public and then sells or sends copies of the program to the public.
Usually, there would also be an infringement of copying by making copies of
the program.

Making an adaptation of a literary, dramatic or musical work is restricted act. In

terms of a musical work, a new arrangement of a song is an adaptation of the
original. Changing a cartoon strip into a story told by words only is also an
adaptation, as in a translation of a literary or dramatic work.30 For computer
program, by section 21(4) of the U.K. Act 1988 a translation has been given a
special meaning and includes :

a version of the program in which it is converted into or out of

a computer language or code, otherwise than incidentally in
the course of running the program.

If a high level, source code computer program is compiled (converted) into an

object code program, this will be an adaptation of the source code program and
therefore, a restricted act. At first sight, it would appear that the object code
program, because it a 'computer program', should be protected as a literary work
in its own right. However, the elements of skill, labour and effort will be
missing from the object code version which will have been created simply by
using an appropriate compiler program.31 These elements will, of course, be
present as regards the source code program. Therefore, it is desirable that object
code program are protected as adaptations of literary works.

It could be argued that the meaning of ‘translation' is too wide as it seems to

catch a version of a source code program written in different high level language
from that used for the original program. If a computer program is written using
BASIC and someone then re-writes the program in COBOL, the latter will be an

30
The Indian definition of 'adaptation' a given in Section 2 (a) of Copyright Act 1957 as amended in 1994 is on
similar lines.
31
BAINBRIAGE, I. DAVID, Supra note 13, at p. 21.

59
adaptation of the BASIC program because it has been Converted into a different
computer language. But, to produce a program in a different high level language
is not merely a question of translating the program instructions from one
language to another as with the spoken languages : the programmer would have
to reduce the original program to its underlying concepts and ideas and from
those concepts and ideas (not from the computer programs itself) develop a new
version of the program in another high level language.

The difference between the two programs could be as wide as those between
Romeo and Juliet and West Side Story, and as a basic principle, Copyright
should not protect ideas as such, only the expression or recording of those ideas.
However, it seems that the new version of a program in a different high level
language will be an adaptation, regardless of the quite considerable amount of
skill and effort required to 'translate' the program.

Restricted acts apply to a work as a whole or to any substantial part of it.32 What
is substantial is a matter of fact and the courts will look to quality as well as
quantity.33

32
U.K. Copyright, Designs & Patents Act 1988, Section 16 (3). 86. Hawkes & Sons (London) Ltd. V. Paramount
Film Service Ltd. (1934), Ch593,.
33
Hawkes & Sons (London) Ltd. V. Paramount Film Service Ltd. (1934), Ch593,.

60
INDIAN COPYRIGHT (AMENDMENT) ACT 1994
& COMPUTER SOFTWARE
Though 1994 Indian Amendment has already been discussed in the chpater, few
specific things even at the cost of repitation need further elaboration. The
Copyright Act of 1957 was amended in 1983 and then again 1994 to give
effective protection to computer programs.

After the 1983 Amendment, Section 2(0) in its definition of "literary work"
included :

"tables and compilations and computer programmes, that is to say, programmes

recorded on any disc, tape, re perforated media or other information storage
device, which, if fed into or located in a computer or computer based
equippment is capable of reproducing any information.

"After the 1994 Amendment, above section now reads as follows : "literary
work" includes computer programmes, tables and compilations including
computer data basis."

The 1994 Amendment now specifically gives definition of "computer" and

"computer programme" by inserting new clauses in Section 2(ff). "Computer"
includes any electronic or similar device having information possessing
capabilities.

61
"Computer programme" means a set of instruction 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."

It is indeed strange to note that though the amendment was introduced in 1992
and was referred to Parliamentary Joint Select Committee, yet it uses the word
"computer programme" though the appropriate expression is "computer
program". The latter spelling of "program" is the correct usage in relation to
computers, both as noun and as verb. Similarly there could be a legal loophole
with regard to the interpretation of term "information". It is, therefore, proposed
that the section be amended and should read :

"Computer" includes any electronic or similar device having information and/or

data processing capabilities.

The 1994 Amendment confers following exclusive copyright rights in respect of

computer programs –

(i) to reproduce the work in any material forms including the storing of it in
any medium by electronics means;
(ii) to issue copies of the work to the public not being copies already in
circulation,
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film, or sound recording in respect of the
work;
(v) to work any translation of the work;
(vi) to make any adaptation of the work:
(vii) to do, in relation to a translation or an adaptation of the work, any of the
acts specified in relation to the work in sub-clauses (i) to (v).

The above rights are available to computer programs in company with literary,
dramatic or musical works. But there are some rights which have been
specifically guranteed such as to sell or give on hire, or offer for sale or hire,
any copy of the computer programme, regardless of whether such copy has been
sold or given on hire on earlier occasions.

Since computer programs are "used" by customers who pay a licence fee to the
owner of the copyright in the program to permit them to "use " the program, it
should have been explicitly declared that the right to use is one of the rights
vested in the copyright owner. Accordingly the clause should have read :

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 to sell or give on hire, or offer for sale or hire, or use any copy
of the computer program, regardless of whether such copy has
been sold or given on hire or put to use on earlier occasions.

As to the acts which do not constitute an infringement of copyright, the 1994

Amendment inserted following clauses in Section 52 in relation to computer
programs:

"the making of copies or adaptation of a computer programme by the lawful

possessor of a copy of such computer programme, from such copy-

(i) in order to utilise the computer programme for the purpose for which it
was supplied, or
(ii) to make back-up copies purely as a temporary protection against loss,
destruction or damage in order only to utilise the computer programme
for the purpose for which it was supplied."

This also needs a minor amendment to use expression "lawful uses" instead of
"lawful possessor".

Then the Amendment has inserted Section 63B which provides:

Any person who knowingly makes use on a computer of an infringing copy of a

computer programme shall be punishable with imprisonment for a term which
shall not be less than seven days but which may extend to three years and with
fine which shall not be less than fifty thousand rupees but which may extend to
two lakh rupees.

Provided that where the computer programme has not been used for gain or in
the course of trade or business, the court may, for adequate and sepcial reasons
to be mentioned in the judgement, not impose any sentence of imprisonment and
may impose a fine which may extend to fifty thousand rupees."

It seems that the minimum sentence of seven days is too liberal. The original
proposal of one month's minimum sentence in the 1992 Bill should, therefore, be
brought back.

Thus it has been noticed in this chapter that copyright protection to computer
software is the need of this last decade of 20th century. As 21st century is going
to a century of computers, complicated legal issues are bound to arise and,
therefore, more indepth studies in this vital area are urgently required. It is also

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to be noted that in all the three countries which form subject matter of present
study i.e. U.K., U.S.A. and India, the legislative activity on copyrightability of
software has been quite recent one and these countries in quest of keeping pace
with fast changing computer technology are trying to bring in quick
amendments in this area. It is quite satisfying to note that India has not lagged
behind in this vital area, so crucial for our development and both 1983 and 1994
Copyright Amendments did try to provide best possible software protection.

BIBLIOGRAPHY

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