Copyright in Computer Programmes
1. INTRODUCTION
2. A NEGATIVE RIGHT
3. AN EXCLUSIVE RIGHT
4. DATA BASES
5. COPYRIGHT IN SOFTWARE
6. COPYRIGHT OWNERSHIP, ASSIGNMENT AND WORKS FOR HIRE
Introduction
Copyright is the right or set of rights granted to the first author of an original work, that allows the author to exclusively exploit his work for commercial gain. Under the Copyright Act, 1957, in India, the protection of a copyright has been stated to extend to certain specific classes of works like:
a. Original literary, dramatic, musical and artistic works;
b. Cinematographs films; and
c. Sound recordings.
The term “literary works” has stated to “include” computer programmes, tables, and compilations including computer data-bases. This computer programmes and databases would receive the same protection, as would be available to a literary work.
Further, the amendment of the Copyright Act, 1957 in the year 1994 has introduced the definition of computer programme as:
‘(ffc), ‘computer programme’ means a set of instructions expressed in words, codes, schemes or in any other form including a machine readable medium capable of causing a computer to perform a particular task or to achieve a particular result’.
A Negative Right
Copyright is a negative right, which enables the author to prevent another person from dealing with the copyrighted material in any one of several prescribed ways. It is also a bundle of rights, and not just one right. It entitles the owner of the copyright to take action in respect of violation of his copyright, in one of several ways.
Copyright protects the judgment, labor, skill and capital that the author has invested into the creation of work.
An Exclusive Right
In, Green v. Broadcasting Corp. Of New Zealand[1], Lord Bridge, delivered the judgment of the Privy Council, stating that, “that the protection which copyright gives, creates a monopoly. The owner of the copyright processes the exclusive right to perform certain acts in respect of the work.”
Rights Covered
Copyright comprises of the following rights:
1. To copy the work or any substantial part of it;
2. To issue copies of the work to the public;
3. To perform, show or play the work in public;
4. To broadcast the work or to include it in a cable programme service; and
5. To make an adaptation of the work or do any of the above in relation to an adaptation[2]
In respect of computer programmes, it is provided that adaption means, “an arrangement or altered version of the programme or a translation of it.”[3]
Data bases
Copyright law is currently the primary vehicle of protection for data bases. A data base is a “compilation”. Today, it is usually electronic and digitalized. The concept of a compilation being protected by copyright law has been recognized for many years. The expression ‘compilation’ means:
a. A work resulting from the selection or arrangement of literary, dramatic, musical or artistic, scientific work or of parts thereof;
b. A work resulting from the selection or arrangement of data.
Copyright in Software
Software programmes are recorded on magnetic media, such as floppy discs or video discs (VCD’s) and also on hard drives. What is valuable is not the substance but the message. As software programmes are essentially intangible items it is required that they shall be loaded as intellectual property. This is the reason why copyright are usually made applicable to them. In India, Section 14 of the Copyright Act, 1957 provides as under:
S. 14. Meaning of copyright.- For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-
(a) In the case of a literary, dramatic or musical work, not being a computer programme, -
(i) To reproduce the work in any material form including the storing of it in any medium by electronic 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 make 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 (vi);
(b) In the case of a computer programme,-
(i) To do any of the acts specified in clause (a);
(ii) To sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme, regardless of whether such copy has been sold or given on hire on earlier occasions;...
Copyright Ownership, Assignment and Works for Hire
Generally the first author of the work is designated as the owner of the copyright in the work. There are various exceptions to this rule. The copyright in a work that was commissioned for valuable consideration will rest with the person commissioning such work, except where there has been a contract to the contrary between the author and the person commissioning the work.
Section 17 of the Copyright Act, 1957 provides as under:
S.17. First owner of copyright. - Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein
Provided that-
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;
(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
(c) In the case of a work made in the course of the author s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
[1]Green v. Broadcasting Corp. Of New Zealand (1982) 2 All ER 1056.
[2] Section 10, Indian Copyright Act, 1957
[3] Section 21(4), Indian Copyright Act, 1957
About the Author
Mridula R. Ravindran
Final year law Student
Army Institute of Law
India.
Comments