The Copyright Act, 1957 gives creators of original works such as books, songs, films, and now software exclusive rights over their creations. The Act encourages creativity by preventing others from using these works without permission. In simple terms, copyright means the right to copy and use the work and to stop others from doing so without consent. Under this Act, authors automatically get copyright in their works as soon as the work is created. Registration of a work with the Copyright Office is optional but helpful: a registered copyright becomes prima facie evidence of ownership in court, meaning it is strong proof of who owns the work. This article delves into software protection under Copyright Law with defining computer programme, its history, the rights given to the creators, ownership, infringement and penalties for wrongdoer.
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History of Software Protection under Copyright Law
Originally, the 1957 Act was drafted before the age of modern computers and did not mention software. The change came with the Copyright (Amendment) Act, 1994. In 1994 the Act was explicitly expanded to include computer programs. This Amendment (Act No. 38 of 1994) added “computer programmes, tables and compilations including computer databases” to the definition of literary work. From that point on, all the rules that applied to books and writings also applied to software. In short, software became protected by copyright in India in 1994.
Since then, software creators have the same protections as authors of books or music. For example, a programmer’s code must be original and fixed in some form (written down or saved in a file). Copyright does not protect mere ideas or algorithms themselves, only the specific expression of those ideas (the actual code). Once a programmer writes original code, copyright exists in that software immediately. There is no need to “register” or file any paperwork to get the software protection under Copyright Law, although registration (if done) can make enforcing rights easier.
What Is a Computer Programme?
Section 2(ffc) of Copyright Act, 1957 specifically defines a computer programme as:
“a set of instructions expressed in words, codes, schemes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result”.
In other words, software and code (whether source code or object code) are explicitly recognized. The law treats computer programs as a type of literary work. This means that all the usual copyright rules for books and written works also apply to software. Both the human-readable source code and the machine-readable object code are covered by copyright, as long as they are original creations of the author.
Rights Given to Software Creators
Software creators can prevent others from copying, sharing or modifying their code unless the creator says that it is OK. These exclusive rights last for the life of the author plus 60 years in India, giving developers long-term control over their work. These rights include:
The right to reproduce the program (copy it in any form, such as saving a file or printing the code).
The right to publish or distribute copies of the software to the public.
The right to translate or adapt the software (for example, converting code to another programming language, or making a new version).
The right to communicate the software to the public (for instance, by making it available for download or use over a network).
In addition, software authors have a special right to sell or rent copies of their software. In other words, even if someone buys a copy of the software, the creator still controls further commercial use. This is similar to how a video or DVD works: even if you buy one, you’re not free to keep renting it out. However, the Act makes a small exception: if the software copy isn’t the main object being rented (say you rent a computer that happens to have some software installed), the rental right does not apply.
Dive into Best IPR Law Firms in India.
What Is Infringement? What Uses Are Allowed?
When someone violates these exclusive rights without permission, it’s called copyright infringement. For example, if a person copies or distributes software code they do not own or have a license for, that is infringement. Making a product that is substantially copied from someone else’s code would also infringe.
However, the Act also balances this by allowing certain limited uses without permission. These are often called “fair dealing” exceptions. In India, Section 52 of the Act lists specific situations where copying is not infringement. For software, key exceptions include:
Private or backup copies: If you legally own a copy of the software, you may make backup copies or adaptations from that copy solely to use the software on your computer. In practice, this means you can install the software on your device or make one backup to prevent loss, but only for your lawful use.
Interoperability: If you have a copy of a program, you can reverse-engineer it (study how it works) in order to make your own program that can work together with it, as long as you do not get information that is already publicly known. This exception lets independent developers ensure their programs can interoperate (e.g. so different software can share files).
Personal use: You can make copies or adaptations of software for non-commercial personal use from a legally obtained copy. This is a limited exception allowing a user to convert software into a different format or transfer it between devices for personal purposes.
Importantly, these exceptions only apply if you already have a legal copy of the software. They do not allow copying software in order to distribute it or to use it on multiple machines you haven’t paid for. Any copying beyond these limited cases like sharing the program with others or using it in a product you sell still requires permission from the copyright owner. In short: allowed uses include making backup copies or studying your own copy for interoperability. Disallowed uses include piracy, sharing cracked software, or bundling code into a new commercial product without a license.
Ownership and Licensing of Software
By default, the creator of the software is the first owner of its copyright. This means the person (or company) who writes the code typically owns it. For example, if a programmer develops a new program as part of their job, the employer usually owns the copyright (unless a different agreement exists). If an independent developer writes software on their own, that developer is the owner.
Software is usually not sold outright like a piece of property. Instead, what changes hands is a copy of the software under a license agreement. The license (like the shrink-wrap terms or an End-User License Agreement) tells you how you may use the software. For instance, buying a licensed copy of an operating system or game lets you install and use it as the license describes, but does not give you ownership of the underlying intellectual property.
Because of this, software licenses often include restrictions (e.g. “for one machine only,” or “no reverse-engineering”). Violating the license (such as installing software on more computers than allowed) can be both a breach of contract and a copyright infringement. On the positive side, some licenses (especially open-source ones) grant broad rights to copy, modify, and share software freely. But in all cases, the software author or publisher retains the core rights unless explicitly given up.
Also, learn about Patent Vs. License
Penalties for Copyright Infringement
Illegal copying and distribution of software can lead to legal penalties in India. The Copyright Act provides both civil and criminal remedies.
Civil action: The software owner can sue infringers in court for damages or injunctions (orders to stop the infringement). The court may order the infringer to destroy pirated copies, pay fines, and compensate the owner for losses.
Criminal penalties: Under Section 63 of the Act, anyone who knowingly infringes copyright can face criminal charges. The law says such a person “shall be punishable with imprisonment for a term which shall not be less than six months but may extend to three years” and a fine between ₹50,000 and ₹200,000. This makes serious piracy a punishable offense.
The enforcement can intervene, software piracy can be investigated by police, and offenders may be prosecuted. Note that for criminal liability, the infringement must be willful and for profit. Innocent mistakes (e.g. using unlicensed software out of ignorance) may lead to civil liability, but serious offenders can face jail time.
Registration and Enforcement
Registration of copyright is optional in India. Copyright exists automatically from creation of an original work. However, registering your software with the Copyright Office is a wise step because the registration certificate serves as prima facie evidence of your ownership and the date of the creation. And in any legal dispute, this certificate can make it easier to prove your case without having to produce the source code itself.
To register, the author (or other interested person) files an application and deposits a copy of the software (usually the object code or relevant portion of source code) with the Registrar. The Registrar may then enter the work in the official Register. This process does not grant copyright (the work already had copyright), but it creates a public record.
Enforcement of software copyright in India can happen through civil courts or criminal complaints. The Act allows software owners to take infringers to court for relief (injunctions, damages). The police can register a First Information Report (FIR) and investigate criminal infringement under Section 63. In addition, the Copyright Act provides for measures like search and seizure of infringing copies. There are also specialized copyright societies and a Copyright Board (now replaced by the Intellectual Property Appellate Board) that play roles in administration and dispute resolution.
In essence, creators of software have strong legal tools like they can use registration to strengthen their claims, and if infringement occurs, they can pursue both civil and criminal remedies. The combination of automatic copyright, optional registration, and enforcement mechanisms helps keep software piracy in check.
Summary
The software protection under Copyright Law is done by treating it as a literary work. Since the 1994 amendment, original programs (code) are covered just like books or songs. Software creators have exclusive rights to copy, modify, distribute, and even sell or rent their programs. Others may use the software only under license, or within very limited exceptions (such as making backups of a program you own). Unauthorized copying is infringement and can lead to civil suits and criminal penalties. Registration with the Copyright Office is optional but provides helpful proof of ownership. By understanding these rules, both creators and users of software in India can know their rights and obligations under the Copyright Act, 1957. In the digital age, the software protection under Copyright Law is vital for encouraging innovation while balancing fair use.
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Software Protection under Copyright Law: FAQs
Q1. What is the legal protection of software?
Software is protected by laws like copyright, patents and trade secrets to prevent unauthorized use, copying or distribution. These protections ensure creators control their work and benefit from it.
Q2. What are the protections under copyright law?
Copyright law protects original works like software code, preventing others from copying, distributing or modifying it without permission. It covers the specific expression of ideas, not the ideas themselves.
Q3. Is software protected by copyright or patent?
Software is primarily protected by copyright for its code and sometimes by patents for unique processes or functions. Copyright is more common, while patents are harder to obtain.
Q4. Is a software code eligible for copyright protection?
Yes, software code is eligible for copyright protection as an original work of authorship. It protects the specific code but not the underlying ideas or functionality.
Q5. What type of protection is copyright?
Copyright is a legal protection that grants creators exclusive rights over their original works, like software, books or music. It prevents others from copying or distributing the work without permission.
