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The ability to distribute copyrighted content in digital form through magnetic/optic media including high capacity pre-recorded discs (e.g. Compact Discs(CDs), Digital Versatile Discs(DVDs), floppy discs, etc.) and Internet-enabled transmissions has brought new challenges to the protection of such content from unauthorized use and copying. Legal and technical mechanism to address these challenges are still very new, but important developments have occurred in the past few years. Researchers and developers need to understand these developments in order to ensure that research and development is not conducted in a manner that is contrary to the new legal requirements. A concerted effort of the international community to respond to the challenges of digital technologies mostly took place under the aegis of World Intellectual Property Organization (WIPO). In December 1996, the World Intellectual Property Organization (WIPO) concluded work on two treaties (WCT & WPPT) designed to bring copyright protections into the digital age. A core concept in these agreements is the prohibition against circumvention of technical measures employed to protect copyrighted content from unauthorized copying. The 1994 Agreement on Trade Related Aspect of Intellectual Property Rights (TRIPS) incorporated the provisions that Computer programs, whether in source code or object code, shall be protected as literary works under the Berne Convention. Keeping in view the requirements of the software industry and the need for giving impetus to the development of digital technologies in the country, amendments have been made to the Indian Copyright Act 1957 substantially in 1994 & 1999 to make it fully compatible with TRIPS Agreement.
India is making great strides in the area of computer software and services. The country is targeted to export these items worth US $50 billion by year 2010. However, a small recent survey made reveals that IPR issues which have great implications in this venture, are not getting due consideration. The general feel about IPR in respect of computer software always stressed by s/w industry forums like NASSCOM in their Annual Reports has been the issue of software piracy. The important issue herein which has to be considered by any software entrepreneur is a proper selection of software tools used in the production of a software product or package or setting up of e-enabled services. It is noted that suppliers of software tools keep certain tags on the distributable, which are created using their tools. The Actual User/End user License Agreement declared and mostly available in the beginning of every software tool should not be ignored since using this as a legal weapon, the owner of tools & packages may take away not only the entire revenue earned through the process of software development and trade of it, but also get imposed severe penalties including heavy fines and imprisonment of the erring users.
In above regard, a study has recently been made regarding the IPR issues which are associated in the entrepreneurship and export of computer software and services. In such a study made, it was noted that the global computer software industry is facing the problem of software piracy mostly because of easy and almost no cost ways to duplicate a software. It was noted that software piracy manifests itself in following three ways.
- Ditto copying
- Substantial copying
- Casual resemblance
It was also noted that those involved in ditto piracy can be easily caught and booked under the Copyright laws available in various countries which are members of the Copyright Convention or Berne Convention. Substantial copying cases which have been noted here and there in developed countries involved duplication of important sections of a software owned by a company A' by a company B' by any of methods including employment by B' of a professional who already was employee of company A' and developed similar package there while working in A'. A review of court cases revealed that such cases are quite difficult to prove but are identified and proved in the court with the help of software experts. Casual resemblance cases which mostly involve similarity and the duplication in the codes of two software not exceeding 5% of the total size of the software have been considered by the courts that such cases cannot be definitely taken as piracy unless proved beyond doubt. Fig. 1 depicts a schematic approach to decide when a copyright infringement of a software is done and when it is not the case.
As a matter of fact computer software products and packages are mostly protected under Copyright Act. However, with integrated IPR's available under TRIPS Agreement, the present trend is to protect the s/w under multiple IPR provisions. Fig.2 shows various forms of legal protections which may be applied for protecting computer s/w products and packages in India on the same line as done abroad ones the necessary acts in our country have become totally compatible to TRIPS Agreement. TRIPS makes provisions for protecting the mask works related to Semiconductor Layout Designs of IC's and that all technologies can be protected through patent. Countries like US, Japan , European Union grant patents in respect of some s/w implemented inventions which have technical effects. Patents provide stronger protection than copyright. A comparison of copyright Vs Patents is given below. Law of contracts is also utilised in the form of Actual User License Agreement/ End User License Agreement mostly in the read me file of all s/w products.
The real world being the way it is, it is worth considering and adapting the global trends in respect of IPR wise safe trading in computer s/w and services. The owners of popular software packages and popular software tools to keep their intellectual property secure in the global market through a well knit technical, legal and market intelligence system. They are stressing through World Trade Organization that their hi-tech products will be marketed only in member countries who are party to the Trade Related Intellectual Property System (TRIPS) Agreement. India is a signatory to the TRIPS. In fact, TRIPS enforces minimum framework to secure intellectual property rights in all the member countries by providing national status treatment in respect of all intellectual property rights being traded in such nations. In the area of computer software, it is noted that the owners of packages and tools have imposed in their Actual User License Agreement/End User License Agreement AULA/EULA) very strict conditions attracting the Copyright Act relevant to the country where products are marketed. This cause for obtaining Copyright' registration for the product which makes the right fully enforceable. In India , somehow, number of copyrighted works in area of computer s/w are few hundred in comparison to say USA which has several lakhs of s/w products registered under Copyright Act.
Copyrights Vs Patents
|A Copyright protects an original work in the tangible, fixed form in which it has been set down and not the idea behind the work.||Patent protects the creation of inventive concepts as well its reduction to practice.|
|In order for a work to be Copyrighted, it must be original and fixed in a tangible medium of statements.||In order for an invention to be patented it must be novel, non-obvious and useful.|
|Copyright lasts for the life of the author, plus 60 years.||Patent lasts for 20 years from the date of application.|
|For a Copyright to be infringed, the work itself must have actually been copied (either wholly or partially), distributed, performed or displayed.||Whereas, a patent confers a statutory monopoly that prevents independent developer of patented invention from using or selling his/her creation, Accusation is complex & costly.|
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