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C.V.O. CA's News & Views > Copyright In Software

C.V.O. Chartered & Cost Accountants' Association

Copyright In Software

Contributed by Shri Ashok Z. Dedhia

Page 1

Computer Software

Computer software programming has in last decade turned out to be the most lucrative and remunerative area compared with other areas of business and profession. Computer software is nothing but set of instructions to the computer on which it is worked on or installed to compute the existing or user supplied information in a particular manner. Such computing is done with an aim to achieve desired result. Computer hardware has only computing ability as may be directed by the software and software may be termed as a brain or guide of the computer hardware.

Computer Software - an intellectual property

Having regard to the vital function computer software performs it is considered as an intellectual property conferring upon the owner thereof certain rights in relation thereto. Such rights are conferred upon the owner by the statute and thus making it a statutory right.

Patenting of Software vs. Copyright in Software

U.S. law allows patenting of software. Unlike India and rest of the world, in U.S., software is not considered just a literary work under the copyright law. U.S. patent law recognises the process and the outcome in relation to software and allows patenting thereof, provided the software gives some new product or output and/or contains novel and better process for getting existing output/product. U.S. law recognises such software on the same footing as any other invention for manufacturing physical articles/goods.

In case of copyright, it is granted in relation to the manner in which the software is prepared i.e. the manner in which the idea to make the software is actually and practically put into the action by writing the programme. For the purposes of copyright law, computer programme is considered part of Literary Work i.e. practically the protection is granted for the text of the programme and not the process, idea or product (end result) of the programme. We shall discuss copyright law in relation to software, applicable in India.

All over the world, software programmes are protected under the Copyright law except in U.S. where it is protected under the Patent law.

What is Copyright?

Word Copyright, if segregated, would read as "copy right", implying it's meaning as right to copy something. Copyright is a bundle of rights in relation to the work in which it subsists. We shall elaborately discuss the meaning of the words, "bundle of rights" later while discussing licensing of copyright.

For example, copyright in software may be referred as exclusive right to do or authorize the doing of certain acts in respect of a computer programme, subject to relevant provisions of law in that behalf. It includes, inter alia,:

It goes without saying that as the owner has exclusive rights to do the above things others can not do any of the above acts in relation to the software except with the approval of the owner.

It has been held that right secured by copyright is neither the right to use certain words nor to protect the ideas or opinion expressed. It is the right to that arrangement of ideas, which the author has selected to express them.

A license is a grant of authority to do a particular thing. It enables a person to do lawfully what he could not otherwise lawfully do. License does not confer a right but only prevents the acts of the licensee from being unlawful, which but for the license would be unlawful.

As in case of assignment, license of copyright in software may also be given in respect of particular territory, particular kind of customers and or for a particular time period etc. The license may be given with such restrictions as may be agreed between the parties. Thus, owner's right to license is part of the bundle of rights (copyright) he has.

A very good example of licensing with restrictions is software licensing by Microsoft Corporation. In case of Microsoft products, license is granted to use the same only upon one computer by or on behalf of the person buying the same. The product has to be bought from Certified Microsoft Reseller and the license is not transferable. If "one user license of Windows XP" is purchased from a Certified Microsoft Reseller, the purchaser can use the same only for one computer in the premises where the booklet containing the license documents and terms and conditions thereof is lying.

In many cases the software user is under wrong notion that as he has purchased a license copy of the software, his using the same on his more than one computer is legal. Most of the times reason for such illegal usage is its high cost. One license of Microsoft Office costs minimum around Rs.15,000/- and in case of Microsoft Windows operating system, it costs around Rs.5000/-.