Chapter – I

INTRODUCTION
Chapter – I

INTRODUCTION

Computer programs are one of the youngest and, at the same time, the most
complex and specific objects of intellectual property law. The reference point in the
development of computer technology is considered to be 1946 when a patent was
issued to the creators of the Electronic Numerical Integrator and Computer
(ENIAC).1 The work of this integrator was to execute a certain sequence of
commands. The commands were recorded in the form of a chain of zeros and ones,
then entered into the machine as numbers in binary, octal, or hexadecimal.2

Commands created in this way were called machine code and were not
accessible to human perception. Programmers who did not participate in the
development of a software program, as a rule, could not understand all the principles
of its use, therefore such phenomena as plagiarism and borrowing of other people's
ideas were practically absent among programmers. The next step was the creation of
high-level programming languages, intending to speed up and simplify the process of
developing computer programs. Such languages provided the ability to enter
commands into the electronic computer using operators. At the same time, the
commands used were more accessible to human perception, as a result of which
copying other people's programs became much easier. 3 Further, the development of
programming went along the path of increasingly simplifying the process of creating
computer programs, as a result of which programming to a certain extent became
available even to ordinary users. The literature suggests that modern programming

1 The British patent on the ENIAC was granted on 26 May 1954, nearly a decade before the
American patent, issued on 4 February 1964 with patent no US3120606A. On 19 October 1973, after
a six-year legal battle, Judge Earl R. Lawson invalidated the ENIAC patent on the grounds that Eckert
and Mauchly had derived their ideas from an earlier computer pioneer, John Atanasoff, who invented
a specialpurpose electronic computer in the 1930s. This landmark decision placed the concept of the
electronic stored-program computer into the public domain, with enormous positive consequences for
the computer industry.
2 B.C. Smith, The Owl and the Electric Encyclopaedia, 47 Artificial Intelligence, 251-288
(1991). 3 Nilles, Copyright Protection for Programs Stored in Computer Chips: Competing with IBM
and Apple, 7 Hamline Law Review, 122 (1984).
 Software Protection from Piracy under Indian Copyright Law – A Critical Legal Study

has become more like compiling a program from modules created by other modules
and sections of program code.3

Initially, the development and distribution of computer programs were

scientific in nature, since it was intended for computers serving research centres. The
protection of the electronic computers themselves as new devices did not cause any
particular problems, since they corresponded to all the features of patentable
technical solutions, and the new solutions underlying the new computer models were
protected by patents.4 And since in the first years of computer production software
made up no more than 5% of the cost of the machine, the software itself was
associated with a specific computer model produced by a certain company, there was
no need for the legal protection of the software as an independent object separate
from the computer.5

However, with the improvement and complication of the computer technology

itself, the importance of software began to increase; software products have received
the status of a product on the market. With the advent and mass distribution of
personal computers, computer programs have gradually become the object of
commercial use. They began to be introduced into economic circulation as a
commodity that has its value. Hence, there is a need to protect software as an
independent object of civil rights.

The internet is a strong and impressive instrument that has ushered in a new
era of learning. However, the internet can be horrific, and even devastating, if
intentionally misused. The internet is a global means of communication that is
unique. Online communications, nevertheless, can be detrimental, leading to
emotional discomfort. There is a provision in the existing legal framework to protect
the innocent of online harm. The law still has a long way to go, however in a
borderless online environment, legal solutions will still face limitations related to
time, expense, and jurisdictional challenges. Anyone can edit any article and new

3 Julian Jang Jaccard & Surya Nepal, A survey of emerging threats in cybersecurity, 80(5) Journal of
Computer and System Sciences, 973-993 (2014).
4 Alan Story, Intellectual Property and Computer Software – A Battle of Competing Use and
Access Visions for Countries of the South, UNCTAD-ICTSD Project on IPRs and Sustainable
Development, 10 – 12 (2004).
5 Peter S. Menell, Tailoring Legal Protection for Computer Software, 39 Stanford Law Review,
13391330 (1987).
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articles can be created by anyone. Sometimes correlated with a victim making a
lawsuit, shame and humiliation can chill many legal actions. The internet may have
brought changes in the world, but the internet is changing the entire world now. New
communications technologies have been pushing globalization for 30 years, the
overriding refrain of the times.
 Software Protection from Piracy under Indian Copyright Law – A Critical Legal Study

Much like the end of the Cold War did not mark the permanent cessation of
hostilities, the need for deterrence was still not finished. Nations are exposed to
attacks in new and creative ways in the current cyber era, representing major national
security threats. While cyber technologies offer imaginative and exciting tools for
achieving global objectives, they also enable distinctive deterrence methods, both
similar to conventional methodologies of deterrence, such as retaliation, and modern
and innovative methodologies, such as invulnerability, invisibility, durability, and
interdependence. As countries work to improve these cyber deterrence strategies,
they will need to be mindful of the corresponding legal problems that will inevitably
arise. Aspects of international law and domestic law cover these legal concerns.
Nations can extend the position of cyber deterrence and work to achieve national
goals by understanding the theories of deterrence and their related legal problems.

In the electronic work environment, emerging information and

communication technologies produce not only new work habits but also new
methods of deviation Prospective new legal and security problems may emerge in the
coming years with the increase in teleworking and home-based work. The workplace
as a group facilitator of computer misuse may be increasingly subject to surveillance
and monitoring in the danger or audit society, posing fundamental concerns about the
right to privacy of employees in the work environment, such as those involving
electronic mail communication. A multitude of possible violations and liabilities are
faced by companies that give their workers access to computer systems and the
internet. Managing the electronic workplace would certainly entail some degree of
supervision, and management should be mindful of the limits under which they
themselves function, in view of the legislation governing workplace surveillance.
Employers will need to include guidance and specific regulatory strategies on the use
of computers and the internet in the workplace. There is also, however, an urgent
requirement for employers to strike the right balance between the need for
productivity, quality, and proper use of their computer resources and the need for
privacy of the employees and a non-intrusive and relaxed workplace.

It is adequate to achieve negotiated standards, but only when those standards

coincide with the culture and background of the countries in question. In several third
World and underdeveloped countries, the question of protection of intellectual
property rights stems primarily from the dispute between western conceptions of

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 Introduction

intellectual property rights and the culture, history, and legal practices of the creation
of intellectual property rights.

Currently computer developers are without a realistic and reliable way to

combat theft by consumers and the black market. Perhaps vendors will be forced to
lower their prices to a level where piracy is no longer viable in the expectation that
profit will be produced from the resulting increase in demand. By developing a viable
piracy security system, technology could also solve the issue. The introduction of
legislation to curb piracy while encouraging creativity. Internet piracy is somewhat
close to the issue of controlling performance-enhancing drugs in the world of sports -
consumers are almost always one step ahead of the testers.

The computer program plays a major role in our society with regard to
technological development. The need for the adequate legal protection of software is
increasing due to the changing nature of the world-wide computer industry. There is
some ambiguity as to the legal nature of the placement of references to copyrighted
works in the Internet environment. This study tried to evaluate the real state of
software piracy, outline the history and presence of software piracy. The phenomenon
of software piracy is an undesirable and dangerous phenomenon in modern society.
This danger is exacerbated by the fact that the wrongdoer does not generally perceive
software piracy as wrong. For this reason, discussions about that and the legal regime
capable of protecting it effectively and conveniently have been recurrent. Such
discussions focused on defining the nature of the computer program and, in this way,
giving it adequate protection. The information society environment allows
unauthorized users of works who are larger experts to make them more difficult to
trace and to make them more responsible. A question then there is what the
effectiveness of regulation will actually be. However, it is, therefore, necessary to
look for suitable ways of regulation.

Over the decades, since its appearance, the regimes mentioned have been from
competition law rules, to contract law, commercial secrecy, copyright, and patent law,
among others. The policy quickly concentrated on two regimes: copyright and patent
law that translated the two ways in which computer programs were considered,
where those who considered them literary works and, therefore, liable to be protected
by copyright. But there were also those who considered them to be true inventions

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 Software Protection from Piracy under Indian Copyright Law – A Critical Legal Study

and, therefore, the patent law regime would apply. India legislation demonstrates this
indecision between copyright and patent law, and the legislative path in this area is
marked more controversy in the patent.

While the economic bleeding of the world's entertainment industries could

theoretically be prevented by an efficient form of Internet policing, this approach
fails to account for how we can fix the harm that these industries have already
experienced. In particular, the music industry has suffered the greatest losses as a
result of unauthorized downloading and successful copyright law enforcement. Some
have also claimed that by providing services that improve download rates in recent
years, the music industry could receive subsidies from Internet service providers who
have enjoyed considerable profits. In addition, if an effective and efficient means of
compliance is not enforced in the near future, the film, television, software, and
literary industries will eventually suffer.

Efficient solutions to online harassment would need a multi-modal regulatory

system, like many other areas of internet regulation. In order to produce more
detailed responses to online violations, legislative modalities such as societal norms,
public education, and market forces would need to connect. In this regulatory matrix,
reputation management firms play a significant role but are subject to their own
constraints. Growing support for hotlines and their use will also be a step forward in
both addressing individual abuses and offering more accurate and detailed
information on online abuses. Efforts at self-regulation of production, theoretically.

The issue of computer program protection is still under discussion at the

international and national levels. The choice of protection of computer programs is a
matter of choice on the part of their creators and the goals they set. Indian legislation
allows the accumulation of protection, which allows the creators of computer
programs to take advantage of all types of protections that are suitable to eliminate
their difficulties. Combating software piracy is having great mileage out of the
Copyright Act's redress clauses. However, although compliance proceedings against
both industrial and corporate pirates have been launched by the software police, soft
lifters remain free to infringe software copyrights with impunity. Although soft lifting
does not fall under the fair use exception to copyright laws when it comes to fighting
noncommercial home copying, software publishers remain at a loss. The whole

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 Introduction

incentive framework of private computer software provides reason to believe that

soft lifting is easy, quick, inexpensive, and, above all, widespread. The consumer
electronics and music industries worked out a solution that was eventually
implemented in legislation in the face of similar problems raised by the advent of
digital recording.

Ultimately, the resolution of the problem of Internet piracy would depend on

how a balance is struck between defending different public and private interests. The
right to access information requires public interests and the right to freedom of
expression, combined with the need for communication efficiency. The need to
safeguard authors' works from unauthorized replication or manipulation of a
derogatory nature relates to private interests. An effective balance should allow
Internet users to benefit from the broad variety of online facilities and services while
ensuring that those who manufacture material are reasonably encouraged to continue
developing valuable digital works. Unfortunately, the range and scope of legal and
social challenges in the Internet piracy argument are such that all expectations are
unlikely to be integrated before changes take place. One can only hope that all
regulatory responses that are enforced can be closely monitored and reviewed so that
any unintended effects can be recognized and remedied before irrevocable damage is
experienced by the global community.

Initially, in 1886, the Berne Convention, the first and main agreement on
Copyright at the international level, making no reference to computer programs came
to consider that the terms "literary and artistic works" would cover all productions in
the literary domain, scientific and artistic, whatever the form of expression. In this
way, most of the authors considered computer programs subsumable in the category
of literary works. In order to harmonize the International regulations, the Indian law
modified existing copyright law to grant protection to computer programs by
copyright. The protection regime for the computer program in India is conferred on
literary works by the copyright and related legislation in force in the country by the
Copyright Amendment Act, 1994. Despite being protected by sui generis legislation,
it follows the trend of most countries in the world that understood that the computer
program should be the one conferred on literary works by copyright law. In
connection with the still high share of so-called software piracy in the global
distribution of this intellectual property, it is a need to strengthening copyright

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 Software Protection from Piracy under Indian Copyright Law – A Critical Legal Study

sanctions. The fact that the sellers and users almost do not consider piracy to be
immoral, illegal and even they do not know about their nature of offence and what
sanction behind them. Therefore, the solution to the future is to establish a stronger
Digital Regulation Mechanism operating on a hardware basis in conjunction with
control, restriction, or diversification of services provided by the information society
with Net Neutrality.

It was transposed to our internal legal regime, maintaining this type of

protection, although with some idiosyncrasies. Finally, there were some scholarly
discussions taken place with the aim of adopting state laws on patents and
consolidating patent granting decisions for computer-implemented inventions that
have been made over the years. This stalemate, which has lasted for some decades,
continues today. The most conservative policy continues to argue that computer
programs should be protected by copyright, as well as small and medium-sized
companies that do not have the capacity of large companies to defray the high prices
inherent in granting a patent.

Indian legislation and laws in other countries have similarities in copyright

protection of the software although on certain points contain differences. In
particular, in India, it is necessary to provide law enforcement agencies to set up a
relative height of the carriage. This discrepancy can only be achieved in an ideal way
for computer program protection.

Section 14(b)(ii) of the Copyright Act guarantees the right of the lawful owner
to rent copies of the software, and any royalty system levied by the courts will breach
the statute. Instead, the courts should enforce the contributory violation doctrine and
expand it to cover such cases where, while the individual infringer is excused, the
contribution to the violation is unjust. The fair use doctrine can only authorize the
rental of software if the advantage of the non-infringing uses to which the lessor's
efforts, relate outweighs the damage caused by such infringing lessees. The purpose
of the law on copyright is to encourage research and useful arts. Therefore, in the
case of computer programs owners have the right to sell or give on commercial rent
and therefore it constitutes an exception to the doctrine of the first sale.

The internet is not going to vanish, but the prediction that a single internet
could satisfy both the West and the emerging demands of authoritarian states was

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 Introduction

never plausible. Users will have access to the same internet in the United States and
Europe as before, although the Chinese government has already made clear its
intention to claim its own sovereignty over the internet. There is every reason for
other authoritarian states to follow his example. There are far too many variables at
work to confidently predict the full, long-term effect of modern communication
technologies on authoritarian states' political progress. But it seems fair to say that
their impacts would differ as greatly as the people's motivations and the states that
use them.

In addition, only the first part of the solution to the problem is to create a novel
and contemporary rule. The second part is successful copyright compliance, which is
similarly multifaceted. The absence of physical support opens up uncountable
possibilities within a few seconds to download and copy safe works and change
them. Internet piracy is therefore more damaging than ever for copyright owners. It is
not an easy job to strike a perfect balance between the needs of customers and
copyright owners.

The legal protection of software is a controversial and unfinished topic in both

national and international forums since it is a technology that does not fall within the
traditional concepts of copyright or intellectual property. Both from the doctrinal and
jurisprudential point of view, it was demonstrated that an effective legal regulation
that covers current and future computer innovations has not yet been achieved,
parallel to the speed in the changes of this type of technology. Furthermore, the
situation becomes more complex due to the fact that the software producing
industries have invested in economic and human resources to safeguard their rights
and, on the other hand, the consumer is a silent protagonist, he is not listened to. The
difficulty of regulation is closely related to the same technology involved that is
extremely easy to reproduce and difficult to translate into law.6

As advantages of regulating software by the patent system, it can be mentioned

that its protection is strong, much greater for software developers; since it prevents
others from using the patented without permission, they prevent others from creating
software programs that carry out their functions, it encourages employees to develop

6 US Congress, Office of Technology Assessment, Finding a Balance: Computer Software,

Intellectual Property, and the Challenge of Technological Change, OTA-TCT-527 (Washington, DC:
US Government Printing Office, 1992), 161 – 163.
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 Software Protection from Piracy under Indian Copyright Law – A Critical Legal Study

new ideas, increasing the company's valuation in investment, financing, merger and
acquisition transactions and it uniquely protects the investment in research and
development, but as a disadvantage, we point out that the procedure for obtaining a

patent is long and expensive, often requires the intervention of an expert, and that this
does not correspond to the speed of development of the software market. 7 The
fundamental obstacle that stands against the protection of software as a patentable
invention lies in the fact that a program is a set of instructions that, by not involving
material manipulation, determines that it cannot be included within the
technicalindustrial advances that are the object protection centre of the Patent
Regime. As in between the duration in obtaining a patent for a software, a number of
updated versions could be invented which makes the software outdated waiting to get
patented.

1.1 Significance of the Study

Like many other countries in the world, copyright law also covers the software
program as intellectual work in India, and to that extent, the government made all
possible arrangements in copyright law by adopting international regulations. Still,
the rate of unlicensed PC software installations is 56% in India, and it's commercial
value $2,474 according to the 2017 BSA report. 8 Now the changes which were made
in copyright law for the protection of software, how far sufficient, and how much
adequate still need to examine. To bring to the notice of the legislators that it is high
time for incorporating a direct and specific statutory provision relating to stringent
and effective legislations which exclusively meant for software protection in India is
very significant.

The present study may be useful in making certain changes in the software
protection strategy like separate statutory regulations and setting up separate courts.
After completing the present study, the research may be able to throw more light on
the legal protection and judicial trends towards copyright protection of computer
programs. It is found that the legislative and judiciary in its proactive attitude has
already started in that matter by adopting international regulations.

7 Peter S. Menell & Suzanne Scotchmer, Intellectual Property Law, Handbook of Law and
Economics, 1475 – 1478 (A.M. Polinsky & S. Shavell, Vol. 2, 2007).
8 Software Management: Security Imperative, Business Opportunity, BSA Global Software Survey
(June 2018); Available at : https://www.bsa.org/files/2019-02/2018_BSA_GSS_Report_en_.pdf
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 Introduction

The purpose of this study is to analyse the different possibilities that the Indian
legal system offers to protect software under copyright law and other stipulations
available under different laws. To obtain a complete understanding of this matter, this

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 Software Protection from Piracy under Indian Copyright Law – A Critical Legal Study

study will also analyse the legal norms and jurisprudential cases of different
countries, which are pioneering countries in the regulation of this subject.

1.2 Scope of the Research

The technological innovation is one of the essential factors to increase the

productivity needed to achieve sustained economic growth. The legal protection of
the results of innovation through the different titles of Intellectual Property, in a
generic sense, constitutes a widely recognized instrument, and with increasing
intensity, to promote and favour innovative activities both in companies and in
knowledge creation centres. This, too, gave rise to a new debate regarding the
intellectual property tax regime and industries such as software. The debate about the
legal protection that software deserves was born at the time when a distinction was
made between software and hardware.

Until then, the software was not perceived as an independent product of

hardware, with its own entity and value. There was no industry of software products,
but those who developed products marketed them along with hardware, and the rest
provided services. The IBM unbundle put jurists in the double difficulty of
determining what software was from a legal point of view and what kind of
protection should be recognized for it. Traditionally, there have been no major
controversies regarding the protection of the intellectual rights of the creators of
hardware components and this is due to the fact that the creations that are produced
in such terrain are, as a general rule, included within so-called "patentable
inventions". Instead, the situation is much less clear when it comes to the legal
protection of the intellectual rights of the creators of programming. In comparative
law, three different systems have been postulated mainly to provide such protection:

• Invention patents,
• Copyrights, and
• A proprietary or 'sui generis'9 system.

None of these three systems has been ruled out today, with the triple alternative
remaining. However, it should be clarified that most of the doctrine leaned towards
the

9 A form of legal protection that exists outside typical legal protections;

https://www.law.cornell.edu/wex/sui_generis
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 Introduction

protection of the intellectual rights of software creators under the legal regime of
copyright and this preference has been reflected in most of the laws in force in those
countries. In recent years, voices have been raised, from the software industry about
the insufficiency of the copyright system as a mechanism to protect software. They
argue that a sui generis system should be dictated since the computer program cannot
be assimilated to a literary and artistic work, not fully migrate to the patent system,
but rather develop a mixed system based on copyright but considering exceptions in
which it would be legally feasible to patent it.10

However, the copyright regime especially takes into account the situation of the
natural person who writes the code in question and grants them rights that are born
with the writing itself, that is, with the creation of the work itself. Although there are
effective systems and legal assumptions for the transfer of copyrights from the
developer to the company that hires it, as is the case in our legislation, it is not lost on
the fact that the law makes legal fictions that omit the consideration of inalienability
of moral rights. Moreover, the aesthetics or beauty of the work is not an element of
copyright, since it is the principle of copyright that protects the work itself without
entering into the consideration of its aesthetic value or purpose.

Here in this juncture this study is very required in nature to investigate the
copyright protection of the software program in India and to examine how better it is
to fight against piracy equating with other countries, hence this research.

1.3 Review of Literature

Keep in view of the above research objectives an actual research study was
initiated with the survey of the literature. Since the whole study is doctrinal with
comparative analysis, an in-depth endeavour is required for each part of the study.
Hence, the literature is explored mainly with two keywords, i.e. Software piracy and
Copyright protection of software programs. However, during the survey, some more
ancillary topics came across the study and their relevance was also studied and
included with the main topic of the research. To have knowledge on the problem
thoroughly the researcher referred and reviewed available literature in connection

10 John C. Phillips, Sui Generis Intellectual Property Protection for Computer Software, George
Washington Law Review, 4 (1992).
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 Software Protection from Piracy under Indian Copyright Law – A Critical Legal Study

with these two words is reviewed from various sources. The following books and
research

articles are referred for the most extensive source material as the present research
work.

David Bainbridge, Introduction to Computer Law, Pearson Longman, 5 th edition,

2004 – The fact that computer law was clearly beginning to advance as a matter in its
own right is exposed. The excellent growth of the Internet has been the most critical
technical advancement, contributing to a whole range of problems with legal
consequences and the deliberation of encouraging legislative responses at national
and international levels in this book. Intellectual property rights, including such
copyright, are one of the challenges used in this book and it focuses on intellectual
property rights. The privileges associated with artistic, imaginative, and inventive
works are such. The security of computer programs and computer libraries, electronic
publication, copyright of the information society, and software patents are particular
fields protected. It also looked at cybersecurity, including computer theft, hacking,
and similar activities, and disruption to computer systems or records, as well as data
privacy laws.

Asheeta Regidi, Software Protection Licensing, and IPR Laws, Oak Bridge
Publishing, 2018 – This is a conceptual description of the copyright of the software,
software patent, and license rules for software. Bestows to the numerous regulatory
and statutory security structures operating against violation of software rights.
Analysis of the effect on the ripening jurisprudence of international law in India.
Relevant Indian and International Case Law studies. Discusses free and open license
principles, copyleft. E-contract enforceability, comprising shrink-wrap and
browsewrap deals, as well as the relevant provisions of the Information Technology
Act, 2000; the Indian Copyright Act, 1957; the Patents Act, 1970; and the India
Contract Act, 1872.

Sanjeev P. Sahni, Indranath Gupta, Piracy in the Digital Era – Psychosocial,

Criminological and Cultural Factors, Springer Publications, 1 st edition, 2019 –
This manuscript forms an analytical framework for minimizing digital piracy by
developing wider prevention and intervention initiatives. To develop more successful

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 Introduction

problemsolving strategies, it addresses the psychosocial, societal, and criminological

variables associated with internet piracy. Digital piracy entails stealing copyrighted
content unlawfully, particularly internet piracy. Per year, this activity costs the tech
company billions of dollars. World Intellectual Property Organization (WIPO) and
Business Software Alliance (BSA) studies see piracy primarily in the light of
economic factors; the presumption is that it is indulged only by those who are unable
to buy legal versions of software, songs, and films. The writers have planned an
observational analysis to explain the role of social, cultural, and criminological
influences to internet piracy, building on studies and hypotheses from diverse fields
such as psychology, sociology, criminology, and law. This analysis consists of data
from India and China. They investigate the role of self-control, self-efficacy,
perceived seriousness of punishment, knowledge of digital piracy, peer impact,
strategies of neutralization, the quest for innovation, pro-industry factors, and other
socio-demographic factors in digital piracy prediction. In order to better understand
and cope with the problem of internet theft, it includes scholars and experts in
psychology, criminology and criminal justice, law and intellectual property rights,
social sciences, and IT, as well as decision-makers.

Manoj Kumar Sinha, Vandana Mahalwar, Copyright Law in the Digital World –
Challenges and Opportunities, Springer Publications, 1 st edition 2017 – The key
problems, challenges, and recommendations arising from developments in copyright
law and subsequent judicial responses are discussed in this study. It brings leading
intellectual property scholars together to discuss the critical role of copyright law in
the new world's formative needs. It offers an understanding of two related fields:
copyright and digital media. The exponential growth in the potential to replicate and
share material through digital means has eclipsed numerous copyright-related
controversies, leading policymakers to increase the reach of copyright protection in
the digital age. Taking into account the new questions on the position and function of
copyright posed by the initiation of the digital era, this research gains a series of
papers mainly covering new frontiers and shifting horizons, especially in this field.
The contributions deal intensively with core concerns such as the concept of fatigue,
copyright and digital technology, the duty of hosting service providers, the obligation
of originality, exposure to published works for the visually impaired, criminalization
of copyright piracy, and copyright law enforcement of apps, among others.

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 Software Protection from Piracy under Indian Copyright Law – A Critical Legal Study

Kung-Chung Liu, Uday S. Racherla, Editors, Innovation, Economic Development,

and Intellectual Property in India and China – Comparing Six Economic Sectors,
Springer Publication, 2019 – This study focuses on Asian intellectual properties and
law and also discusses international principles of intellectual property (IP) that would
have an effect on Asian growth. So far, internationally speaking, IP analysis centres
on the Western Hemisphere as it increasingly creates and disseminates new
paradigms and legal principles to the rest of the world. Asia has been an importer of
these IP norms and a supporter. The restricted analysis in English of the Asian IP
ecosystem is more domestic, and seldom pan-Asian, which is the approach taken by
this novel. Asia, as the world's growth driver, is now heading to a higher stage of
global progress and will have a much more important impact on international IP law
in the future. This covers creativity, sustainable development, and IP research; the
interplay between IP law and competition law; the intersection between IP and trade
talks; patent law; copyright law; trademark law; and national studies.

N. K. Nair, A. K. Barman, and Utpal Chattopadhyay, Study on Copyright Piracy in

India, Ministry of Human Resource Development Government of India, 1999 –
This is a research report commissioned by the Government of India with the support
of the Ministry of Human Resource Development to determine the level of copyright
infringement prevalent in different segments of the copyright industry, namely
cinematographic works, including film, sound recordings, computer applications,
literary works, and performers. This study claims that infringement of copyright is a
major crime that not only adversely affects the artistic capacity of society by refusing
its rightful dues to the authors, but also creates economic damage to all those who
have spent their resources in creating copyrighted materials for end-users in different
ways. Since a vast number of copyrighted goods being traded globally, globalization
has brought copyright problems to the fore. Therefore, the defence of copyright is a
priority concern on the national agenda of many countries, especially in the
developing world. It has undoubtedly also arisen as an important aspect that controls
foreign affairs. The study is based on the issues surrounding India's copyright piracy
crisis. It aims to arrive at a first-hand examination of the piracy problem, covering the
key divisions of copyright, including cinematographic works, sound recording,
electronic applications, literacy works, and performers. It was of the opinion that the
copyright infringement issue in India should be seen in the light of the country's

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 Introduction

socio-economic component. India is a vast nation with underdeveloped economies

and resources. Many of the copyrighted goods are used in a wide number of locations
and various ways of infringement may exist, but all of them may not result in a large
loss of market interest to the right holders. Instead of having to contend with a vast
number of minor breaches, the copyright law enforcement machinery must excel in
achieving exceptional penalties for the kingpins who are guilty of severe violations.
This study proposed that the patent holders of software should follow a corporate
license scheme to use a specific software instead of the 'one software-one PC' system
in relation to software rights. For their own benefit, they could consider carrying out
low-priced editions of their applications for developing countries such as India.

Paul Craig, Ron Honick and Mark Burnett, Software piracy exposed, Syngress
Publishers, 1st edition, 2005 – This work is about the piracy of apps, what it is and
how it is done. It is not to be excused for copying software, and piracy of intellectual
property and violation of copyright are serious matters, but claiming that it doesn't
happen is entirely impractical. Piracy in apps has expanded the disease spectrum.
Many computer users realize this, tech firms know this, this report is very useful to
see how common theft of software is, to learn how it is done, and specifically how
amazingly simple it is to do. This study has come to explain how the theft of software
is currently being carried out.

Stanley Lai, The Copyright Protection of Computer Software in the United

Kingdom, Hart Publishing, 2000 – This paper analyses the nature of electronic
software copyright protection in the United Kingdom and discusses challenges for
the future. The paper makes the case for the implementation and enforcement of the
technique of violation arising from the courts in the United States, resulting in a
broader spectrum of defence than many UK scholars, professionals and judges are
actually calling for. The paper provides a thorough review of the effectiveness of the
various prevalent copyright infringement tests of software and their progenies,
proposing an updated formula and recommending the feasibility of restricting
doctrines to assist in assessing the substantive resemblance of specific non-literal
software modules, user interfaces, and security of screen displays. The monograph
also provides a thorough study of computer software reverse engineering, copyright
defences, authorized actions, database protection, and copyright-contract interface,
including key internet debates, multimedia distribution, and the effect on British

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copyright law of recent treaties and legislative measures. As such, learning

international tech laws in comparative analysis is a valuable guide for this study.

Akash Kamal Mishra, Intellectual Property Rights in Cyberspace, Cyberlekh

Publisher – At its conception, the incentive for the advancement of intellectual
property law in these books was to ensure that there were ample resources to
contribute to creativity and the production of innovative and original works and
goods. In the context of copyright, trademark, and patent laws, the physical world has
been largely effective in erecting walls to discourage actions that will restrict this
invention.

Rajshree Chandra, Knowledge as Property: Issues in the Moral Grounding of

Intellectual Property Rights, Oxford University Press, 2012 – The research uses
three distinct methods to explore the existence and extent of Intellectual Property
Rights (IPRs): the metaphysical, the methodological, and the theoretical. It studies
the various justifications commonly set forward in defence of the defence of
intellectual property rights and explains how such rights interfere with other rights in
society. The author claims that rights should and should be organized in a lexical
order of priority where rights aligned with survival strategies can have ample legal
teeth to trump rights that, like IPRs, are more of the form of economic rights. This
researcher came to a deeper understanding of how the computer software blends with
conventional literary work while reading.

Clifford M.Koen Jr, Jin H.Im, Software piracy and its legal implications,
Information & Management, Volume 31, Issue 5, January 1997, Pages 265-272 –
In the wake of the explosion of microcomputers in the end-user computing
environment, this paper deals with software piracy as a widespread problem. With
good regulatory approval from the US, software providers and the software vendors
trade group, the Software Publishers Association (SPA), have been very aggressive in
the US in prosecuting patent infringements. A company could, inadvertently, be
subjected to the possibility of being kept accountable by its workers for copyright
infringement. This paper addresses (1) modes of software theft, (2) coordinated
antipiracy efforts, (3) aspects of software intellectual property protection, such as
corporate secrets, trademarks, licensing, copyrights, civil liability, and criminal
liability, and (4) numerous litigation and settlement cases.

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 Introduction

Peter S. Menell, Tailoring Legal Protection for Computer Software, Stanford Law
Review, Vol.39:1329, July 1987, 1329-1371 – While this essay addressing the
evolution of computer program security in the USA shows how the intellectual
activity represented in emerging technology, in particular, computer software, which
was earlier, did not fall neatly into conventional modes of intellectual property legal
protection. The author firmly argues that the societal importance of the legal security
of intellectual property is essentially measured by the degree and degree to which it
encourages the availability of new, updated, and less costly goods. This essay
discusses these flaws in the CONTU guidelines by providing an economic study of
computer device legal security and by recommending the path that should be taken. It
is also helpful to recognize that basic technology requires computers to assess the
legal security of computer software and to investigate the core features of computer
technology. In this article, the author noted that computer software developers could
pursue legal protection under three conventional types of intellectual property legal
protection: copyright, patent law, and trade secret law. Of all types of legal defence,
copyright typically provides computer software with the most straightforward and
readily attainable protection. Two serious shortcomings in the study have been
illustrated, leading to the acceptance of copyright as the main way of protecting
intellectual work contained in computer software and cautiously assessing the need
for further legal protection.

David Bender, Software Protection: the 1985 Perspective, Western New England
Law Review, Volume 7, Issue 3, 1985, 405-458 – This paper addressed the different
processes and strategies available to protect software, the fundamental essence of
software and its production, its common origins, and the legal and extra-legal
approaches available to protect it. It is based on the software, while databases would
be added to sections. The author argued that software is arguably protectable under
patent law, copyright law, and/or trade secret law as a type of intellectual property. As
far as patents are concerned, there is confusion regarding the applicability of most
systems, although it is now clear that certain programmable processes and
programmable devices are eligible for patent protection. As for copyrights, extensive
applicability tends to exist, but there is confusion as to the extent of protection. And
while classical trade secret law obviously extends to programs, there is a question as
to whether there is indeed a conventional version of the venerable corpus of law. In

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separate countries, there is a debate of legislation and the author firmly

acknowledged that there are two ways of finding tech security abroad. One is by
using a protocol or treaty on international copyright and the other is by using the
country's domestic legislation in question.

International Legal Protection for Software – Software Protection update,

Computer Law Associations International Update; Warner & Stackpole-Computer
Law Newsletter; Keplinger, International Protection for Computer Programs - This
article outlines the legal security available in most global markets worldwide for
computer applications. It further identifies improvements in the availability of legal
security after 1992. Copyright, trademarks, trademarks, and contracts are the methods
of protection protected. The following map summarizes whether the software is
presently covered under the copyright or patent law of each country mentioned in the
subject matter. Although the scope of copyright rights for a software work also
depends on the reciprocal participation of an international convention or bilateral
arrangement, certain bilateral arrangements between the US and other countries are
also listed in the graph that also defines convention memberships. Thus, the current
availability of subject matter security in a given country can be calculated from the
map for both US and international software. However, not all national legislation or
convention memberships offer retroactive protection for previously released or
unpublished software, so in deciding if a specific work is covered, the effective date
of the law and membership can be particularly relevant. Such scheduling problems
are outside the reach of this article. This study also updates the status of recent
advances in software copyright rights in Eastern Europe and the former Soviet
Union, as well as developments pertaining to NAFTA and the 1988 US Trade Act
Special 301 on intellectual property. This thesis has assisted a great deal in the
comparative review of this research work.

Frans L Leeuw and Bastiaan Leeuw, Cyber society and digital policies: Challenges
to evaluation? University of Ulster Library, Sage Publications, Volume 18, Issue 1,
page(s): 111-127, 2012 – The authors discussed the relationship between (impact)
assessments and cyber society, especially digital policy, in this article. There tends to
be a discrepancy in the rate at which internet and digital policies enter society and at
the same time pay heed to these policies to skilled evaluators. It is feasible to grasp

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 Introduction

the theoretical structure of policies through this article. Finally, this paper discusses a
particular area of action: internet piracy.

1.4 Limitations of the Study

The topic chosen was very vast with wide scope and more technical, the
researcher limited this study as in this following means.

Since this study is legal in character, the issue of software piracy and relevant
concepts are mostly explained in general and legal understanding rather than the
technical. This study is limited to the copyright protection of the computer program
and patentability of the software is not the subject matter for this research. However,
the protection available under patent law and other statutes also explained wherever
they require to find out the effective protection. For the comparative analysis of the
computer program protection, limited to study the state practice of the USA,
European Union, Russian Federation, China, Japan, Australia, Brazil. Further, this
study is also limited to take into consideration of cases that came before the apex
courts.

1.5 Objectives of the Research

In order to fructify the above purposes of the study and attainment of the
aforesaid research aims, the following objectives are identified to realize the same.
The main purpose of this research is to add new insight to the existing knowledge
with the help of various resources and answer the research questions developed on
basis of the hypothesis. Here, the present research work has been carried out with the
following objectives:

• To explore software piracy with relevant concepts and trace the growth and
development of software piracy in India.
• To highlight the global scenario of software piracy in the software industry
and analyse the causes and effects of software piracy.
• To appraise various arguments and court verdicts to establish that software
program as a literary work to get protection under copyright law.
• To review the International regulations relating to the Protection of a
computer program from the menace of piracy.

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• To examine the policies, regulations, and practices of the foreign countries to

protect copyrights of the software program.
• To trace the historical development of copyright law and conceptual
development of software programs as a literary work in India.

• To evaluate the role of the regulatory framework of copyright law and

administrate mechanism to compensate the victim in cases of infringement of
copyrights of software program.
• To explore the other statutory provisions other than the copyright law along
with relevant penal and common law provisions which are available for the
software protection.
• To analyse the perspectives of the judiciary in India on software piracy issues.

1.6 Research Questions

After an examination of the existing literature and identified the objective of

the research, the following research questions are formulated to facilitate the
hypothesis for the present study.

1. Is software piracy really deteriorate the intellectual rights of a computer

program in India?
2. Is the nature of computer programs really capable of convincing the
traditional rules of the copyright law to treat it as a literary work and the same
stand before the judicial scrutiny?
3. What is kind of protection, whether copyright law or patent, is more prevalent
in different countries to fight against software piracy?
4. How far the changes which were made in copyright law for the protection of
computer programs, are sufficient and adequate?
5. Is jurisprudential application really suitable in order to protect the intellectual
property of computer programs and their violation in India?
1.7 Hypotheses

Basing upon the above research questions the hypotheses was formulated for
the present study as follows

• Since the concept of software protection is in an evolutionary stage, the

present copyright regulatory regime is not conducive for software

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 Introduction

protection and the provisions for the protection of interests of the

software owners are inadequate in India.
• The present Indian judiciary cannot protect the victims of piracy
because of technological issues involved. Special courts for intellectual
property issues in general, software protection in particular to be
established. Unless special courts for intellectual property rights
disputes including software protection are established and ADR
methods are encouraged software protection in India is not possible.

1.8 Research Methodology

In this study, the researcher is trying to analyse critically the Indian regulations
and role of the Indian judiciary in the protection of computer programs in India and
there is also a conceptual analysis in this research. It requires an in-depth study of
provisions relating to a computer program and other laws in India, directly or
indirectly dealing with software protection and various judicial pronouncements on
this subject. For the purpose of this study, original texts, documents, legislation, and
judgments were collected and studied in detail. An attempt has been made to analyse
these documents with special emphasis on the judgments pronounced by the higher
judiciary in software piracy related cases. After due analysis with reference to the
objectives of the study, theoretical generalizations, legal rationality, and value
judgments have been made with due reasoning. Cases have been chosen so as to
represent judicial observation in favour of and even against the known interpretation.
Inferences have been drawn from arguments as well as counter-arguments and
presented with the researcher's comments wherever possible.

In order to ascertain the software protection and Indian jurisprudence on a

particular subject, several legal sources are used as primary and secondary sources to
reach a definite conclusion by suggesting various measures so, here an appropriate
research method of literature survey and documentary analysis where used in this
research. The findings and discussions in the thesis are based on authoritative
writings of scholars, the international legal framework on the topic, relevant laws in
force, and the case laws both in India and abroad were thoroughly examined.

The secondary sources of data are statutes of the Indian Government, statutes
from other countries which are relating to computer program protection, books on the

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subject, articles from various national and international law journals, Supreme Court
and High Court case reports, reports of committees, and other reports, etc. The data
collected from these sources have helped in testing the hypothesis, further, the
international Conventions, legal orders, declarations, and commentaries on software
protection moments and the contribution of Judiciary to the development of law have
been revised. This research also relied upon the further possible and meaningful
source consisting the efficacy of the laws and implementation of international
directives on the issue like book reviews, digests, magazines, newspapers, and
periodicals, etc. with reference to the research have been collected, studied, and
utilized for the purpose of research work. In addition, this research also examined
authoritative articles and has been extensively consulted for the relevant information
available in online resources at official websites of India, foreign countries,
international organizations, and other legal online databases which were very much
resourceful for producing this work.

Therefore, online resources, official document systems, and print resources are
used as the basic research tools for this study. Since the research questions are based
on the doctrinal preposition and more often doctrinal comparative methods of
research were adopted for this research. Precisely, this is doctrinal research and the
nature of the study is exploratory.

1.9 Plan of the Study

For thematic development the present study divided into following seven
chapters.
Chapter – I : Introduction

Chapter – II : Software Piracy – Its Notion and Nature

Chapter – III : Software as a Literary Work – Subject to Copyright Protection

Chapter – IV : Copyright Protection of Software from Piracy in India

Chapter – V : Analysis of World Practice of Software Protection from Piracy

Chapter – VI : Indian Judicial Approach on Protection of Software from Piracy

Chapter – VII : Conclusion and Suggestions

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 Introduction

The First Chapter i.e. Introduction is a general introductory chapter to the

thesis and shall include a brief discussion of the complex situations created by the
problem of software piracy. It deals with the theoretical perspectives of software
piracy and its significance to do research. This chapter includes the research
methodology adopted for taking forward objectives and hypotheses for the study.

The Second Chapter i.e. Software Piracy – Its Notion and Nature comprises
definitions of basic terms largely of a non-legal nature and this part includes a
general and organized definition of the software related terms. The interpretation of
the terms which is important to appreciate the thesis contents are also included. This
chapter also has a discussion on the growth of software piracy and its present global
trends, while dealing with, there is an observation of trends in regional level software
piracy and discussed various organizations that are combating software piracy. Apart
from these aspects this chapter also focussed on the Indian scenario on software
piracy, while dealing with it, this chapter examines the evolution of technology and
software industries in India, trends in software piracy, reasons which are contributing
software piracy, and various types of software piracy which occur in India.

The Third Chapter i.e. Software as a Literary Work – Subject to Copyright

Protection comprises with analysis of the concept of intellectual property and
software as an object of intellectual property, how far it can be protected in the
internet environment. This third chapter mostly deals with the legal interpretation of
technical terms which are very required to establish that computer program as literary
work to get copyright protection. This chapter analyses a computer program as a
copyrighted work, for that purpose it examines the various stages involved in
software making for a better understating of the copyright nature of the software. It
also analysed various arguments that favour deliberating that software as copyright
object and those nonfavourable to consider as copyright object. It describes reasons
for the inclusion of a computer program under the regime of copyright protection, as
well as certain special characteristics ensuing from such inclusion and contents of
copyright. International regulations of copyright protection of the software and
establishing computer program as a literary work are discussed in this chapter.
judicial verdicts into consideration mostly from countries such as the United States
of America and the United Kingdom which have initiated the copyright protection of
software and those are in most advance protecting the copyright of the computer

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program are discussed. In this situation, this chapter examined the judicial approach
in various cases in finding the protectable idea under copyright and also a literal and
non-literal element of the computer program.

The Fourth Chapter i.e. Copyright Protection of Software from Piracy in

India is completely dedicated to the critical study of the copyright protection of the
computer program in India. This chapter examines the historical development of the
copyright law in India from the colonial period to the present-day progress and
necessary provisions are explained with the help of judicial interpretations. It also
entails the changes which were brought by the various amendment acts and those
amendments are very pertinent to make a computer program an object of copyright
protection. There is also discussion on what are the requirements to treat computer
program as original work in order to qualify for copyright protection. As a part of
this, there are some interpretations from the judiciary on how Indian law created the
expression of the program. This chapter elaborated the author's exclusive right and
available remedies in case his right is defeated by others. It also contains
administrative measures to mitigate the problem of software infringement. So far
there are no specific statutes and effective regulations other than the copyright law in
India to curb the menace of software piracy. However, in this study more particularly
this chapter pondered ample provisions in several legislations that help in containing
the menace apart from the Copyright Act, where major protection is available for a
computer program. Those major anti-software piracy legations in India are briefly
mentioned here under this chapter, though they are not mainly focused areas under
this research. This chapter also examines both criminal law and common law
principles to combat software piracy. It includes an enumeration of infractions,
administrative delicts, and crimes related to the infringement on the copyright of a
computer program.

The Fifth Chapter i.e. Analysis of World Practice of Software Protection from
Piracy enumerates sources that regulate the protection of computer programs in
different setups in the world. The focal discussions in this chapter are the law
enforcement and the practice of copyright protection of computer programs in
foreign countries with regard to the practice of protecting computer programs with
copyright standards. Another noteworthy point in this chapter is, that there is an
examination of the difference in the legal protection of computer programs in

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 Introduction

different states in relating to the ownership of the respective rights. This chapter in
the thesis is a crucial and analytical one which uses for comparative analysis of the
existing legal provisions among India and other countries. For such purpose, this
chapter has taken into consideration some of the countries namely the USA,
European Union, Russian Federation, Brazil, China, Japan, and Australia which are
prominent with a way forwarded in the protection computer program. While
discussing the protective measures it is mostly focused on the copyright protection of
the computer program.

Even though this chapter identified the main competitor of copyright protection of
computer programs as patent law, there are few discussions about the advantages and
disadvantages of patent form as protection have been going on for decades. In
addition to these, the special regulations particularly meant for software protection in
some countries are also discussed. Also, in this chapter, there is a discussion on the
distinction which is made by different countries on whether the program is an
intellectual-logical indication or a technical solution.

The Sixth Chapter i.e. Indian Judicial Approach on Protection of Software

From Piracy, with regard to the central problem of the present research work, it is
relevant to conduct an analysis of the jurisprudential application in protecting the
intellectual property of computer programs and their violation. It is well-known fact
in the legal arena that case law may comprise the interpretation of the statutes,
regulations, and provisions. In other words, a judge has a wide variety of cases where
he can apply the existing regulations for compensating the victim. Unless the victim
is compensated or the infringer has been punished the purpose of the act is defeated.
Keeping these lines in mind this sixth chapter has discussed various cases from the
Supreme Court and High Courts to analyse the effectiveness of the protection
afforded to software protection.

The Last chapter (Seventh) i.e. Conclusion And Suggestions deals with
summary of the research study, major research finding and suggestions for effective
control of piracy. This chapter enlists the research findings of the study. It delivers a
clear idea about the result of the study with respect to predefined objectives.
Suggestions appropriate to the research are provided followed by the conclusion. The
conclusion contemplates a potential legal regulation of responsibilities for breach of

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copyright and outlines risks ensuing, the restriction of rights of internet users in case
such regulation is adopted.

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