SUBMITTED BY SANDEEP CHAWDA &VINAY

SHARMA
sandeep chawda
Submitted to shabana Shabnam ma’am

ASSIGNMENT
ON PROTECTION
OF IPR
[Document subtitle]
Contents
ACKNOWLEDGEMENT ............................................................................................................................. 2
INTRODUCTION ....................................................................................................................................... 3
COPYRIGHT PROTECTION IN INDIA ......................................................................................................... 6
PROTECTION OF COMPUTER SOFTWARE ............................................................................................. 11
INDIAN SOFTWARE INTELLECTUAL PROPERTIES RIGHTS ...................................................................... 16
SUMMARY OF INDIAN GOVERNMENT INITIATIVES TO PROTECT IPR ................................................... 17
CASE STUDIES RELATED TO INDIAN IPR PROTECTION .......................................................................... 18
CONCLUSION......................................................................................................................................... 20
BIBLIOGRAPHY ...................................................................................................................................... 21

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ACKNOWLEDGEMENT

The success and final outcome of this assignment required a lot of guidance and assistance
from many people and I am extremely privileged to have got this all along the completion of
my assignment. All that I have done is only due to such supervision and assistance and I would
not forget to thank them.

We respect and thank Prof. SHABANA SHABNAM MA’AM for providing me an

opportunity to do the project work on the topic “PROTECTION OF IPR” in Faculty of Law,
Jamia Millia Islamia and giving me all support and guidance which made me complete the
project duly. I am extremely grateful to her.
I’d also like to thank my parents and sister for being so supportive and cooperating with me
during the making of this assignment.

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INTRODUCTION

Despite the fact that computers have existed for almost half a century, protection of
the intellectual property rights in computer programs has only really become an issue since
the advent of microcomputers, a much more recent development.As early as the beginning of
the 1970’s, the World Intellectual Property Organization (WIPO) had begun to turn their
attention to the issue, and in 1978, produced model provisions for the protection of the
Intellectual Property rights in computer software.

The concept of “intellectual property” in India over the last few years has taken on
some epic proportions for a number of reasons. One of the primary reasons could be
attributable to the growing awareness among the urban Indian population of the significance
and, more importantly, the commercial benefits in protecting its intellectual property rights
both within and outside India. Some of the other factors are the rapid development of the
technology, pharmaceutical and bio technology industries in India where the assets of these
industries lie primarily within the intellectual property that they create and develop. Finally,
one cannot ignore the advent of the foreign influence on the Indian consciousness. This
foreign influence could be motivated for purely selfish reasons, in that, the foreign companies
have either established their subsidiaries in India or have entered into businesses in one form
or the other with Indian entities, thereby creating the need for them to ensure protection of
their intellectual property. I don’t know if these changes are because of an epiphany that the
collective consciousness of India had or it was a “below the radar” progress which suddenly
came to light but whatever the reasons, the changes appear to have happened almost
overnight and the Indian populace has taken a definite proverbial bite of the “intellectual
property” apple. This emerging trend is given a further boost by the changing legal
environment in India.

Intellectual property (IP) is the creation of human intellect. It refers to the ideas,
knowledge, invention, innovation, creativity, and research etc., all being the product of
human mind and is similar to any property, whether movable or immovable, wherein the
proprietor or the owner may exclusively use his property at will and has the right to prevent
others from using it, without his permission. The rights relating to intellectual property are
known as 'Intellectual Property Rights'.

Intellectual Property Rights, by providing exclusive rights to the inventor or creator,

encourages more and more people to invest time, efforts and money in such innovations and
creations. Intellectual property rights are customarily divided into two main areas:-

▪ Copyright and rights related to copyright: - the rights of authors of literary and artistic
works (such as books and other writings, musical compositions, paintings, sculpture,

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 computer programs and films) are protected by copyright. Also, protection is granted
to related or neighbouring rights like the rights of performers (e.g. actors, singers and
musicians), producers of phonograms (sound recordings) and broadcasting
organizations.

▪ Industrial property, which is divided into two main areas:-

• One area can be characterized as the protection of distinctive signs, in

particular trademarks (which distinguish the goods or services of one
undertaking from those of other undertakings) and geographical indications
(which identify a good as originating in a place where a given characteristic of
the good is essentially attributable to its geographical origin).

• Other types of industrial property are protected primarily to stimulate

innovation, design and the creation of technology. This category includes
inventions (protected by patents), industrial designs and trade secrets.

The issue of Intellectual Property Rights was brought on an international platform of

negotiation by World Trade Organization (WTO) through its Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPS). This agreement narrowed down the
differences existing in the extent of protection and enforcement of the Intellectual Property
rights (IPRs) around the world by bringing them under a common minimum internationally
agreed trade standards. The member countries are required to abide by these standards within
stipulated time-frame. India, being a signatory of TRIPS has evolved an elaborate
administrative and legislative framework for protection of its intellectual property.

“How are we going to ensure that our Intellectual property is protected at an offshore
location?” is a question often asked in board meetings of companies that are planning their
offshore initiatives in India. The importance of IP exponentially increases in companies that
are planning to execute some of their core projects offshore and in companies that need to
provide access to classified company data to the offshore location for BPO/Call center
initiatives. It is important for companies to understand IP rights in India and the best practices
that can be followed to protect the IP.

Some examples of legislations enacted in recent times towards protection of intellectual

property in one form or the other, are the Information Technology Act, 2000, the new
trademarks act and the recent ordinance to the Patent Act. Although the Information
Technology Act came into effect only in 2000, amendments to the Act are already being
discussed by the legislature in keeping with the technological advancements in the world.
Then, we have the new trademark act which came into effect in 2003 which recognizes both

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trademarks and services marks as opposed to the earlier act which only gave legal validity to
trade marks.

Finally, as on January 1, 2005, the new Patents Amendment Ordinance, 2004 ("Ordinance"),
which amends the Patents Act, 1970 ("Act"), has been promulgated after receiving assent
from the President of India. Since 1995 this is the third amendment, which seeks to comply
with India's commitment under Agreement on Trade Related Intellectual Property Rights
("TRIPS"). Apart from bringing in the product patent regime in the area of pharmaceuticals
and agro chemicals, one of the seminal amendments this Ordinance seeks to bring is to permit
the patenting of embedded software. Thus, hitherto, where the Patent Act prohibited
patenting of computer software perse, the Ordinance qualifies this by stating that “a computer
programmes per se” is not patentable “other than its technical application to industry or a
combination with hardware”. Therefore, a computer programme which can possess a
technical application to the industry or a computer programme combined with hardware
would be capable of being granted a patent under the current Indian laws. This amendment
will without doubt provide a huge incentive for our information technology industry, such as
the semiconductor industry, to innovate, create and develop embedded software as they can
be assured of the same level of protection in India as they may enjoy elsewhere in the world.

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COPYRIGHT PROTECTION IN INDIA
The advent of information technology has made it difficult to apply the traditional theories to
various cyberspace entities and organizations. These cyberspace players can be grouped
under the following headings:

(1) Internet Service Providers (ISPs),

(2) Bulletin Board Services Operators (BBSO),

(3) Commercial Web Page owner/operators, and

(4) Private users.

(1) Internet Service Providers (ISPs): An ISP most often provides Internet access and he may
be held liable for copyright infringement. In Religious Technology Center v. Netcom On-Line
Communication Services, Inc a former minister uploaded some of the copyrighted work of
the Church of Scientology to the Internet. He first transferred the information to a BBS
computer, where it was temporarily stored before being copied onto Netcom’s computer and
other Usenet computers. Once the information was on Netcom’s computer, it was available to
Netcom’s subscribers and Usenet neighbours for downloading for up to eleven days. The
plaintiffs informed Netcom about the infringing activity; nonetheless, Netcom refused to
deny the subscriber’s access because it was not possible to prescreen the subscriber’s
uploads, and kicking the subscriber off the Internet meant kicking off the rest of the BBS
operator’s subscribers. Thus, plaintiffs sought a remedy against Netcom for infringement
under all three theories –direct, contributory, and vicarious.

The court first analyzed whether Netcom directly infringed plaintiff’s copyright. Since
Netcom did not violate plaintiff’s exclusive copying, distribution, or display rights, Netcom
was held not liable for direct infringement. The court then analyzed the third party liability
theories of contributory and vicarious infringement. The court held that Netcom would be
liable for contributory infringement if plaintiffs proved that Netcom had knowledge of the
infringing activity. The court then analyzed whether Netcom was vicariously liable. Here,
once again the court found that a genuine issue of material fact supporting Netcom’s right
and ability to control the uploader’s acts existed. The court found that Netcom did not receive
direct financial benefit from the infringement. Thus, the court found that the Netcom was not
liable for direct infringement, could be liable for contributory infringement if plaintiffs
proved the knowledge element, and was not liable for vicarious infringement.

(2) Bulletin Board Services: The BBSs are more vulnerable to copyright infringement
litigations than the ISPs because they can operate independent of the World Wide Web.

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The first case in this category was Playboy Enterprises, Inc v. Frena1.In this case, the
defendant operated a subscription BBS that allowed the subscribers to view, upload, and
download material. The court held that Frena had violated Playboy’s exclusive distribution
right and their exclusive display right. Because Frena supplied a product containing
unauthorized copies of copyrighted work, he has violated the distribution right. Moreover,
because Frena publicly displayed Playboy’s copyrighted photographs to subscribers, he
violated the display right. The court concluded that Frena was liable for direct infringement,
though Frena himself never placed infringing material on the BBS and despite his arguments
that he was unaware of the infringement. The court relied upon the strict liability theory and
held that neither intent nor knowledge is an essential element of infringement.

In Sega v. Maphia the BBS was providing services to numerous subscribers who upload and
downloaded files to and from the BBS. The evidence clearly showed that the BBS operator
knew that subscribers were uploading unauthorized copies of Sega’s video games to and
downloaded from his BBS. The court held that since the BBS operators only knew and
encouraged uploading and downloading, but did not himself upload or download any files, he
was not liable for direct infringement. The court, however, found the BBS operator
contributory liable. Regarding the knowledge element, the BBS operator admitted that he had
knowledge of the uploading and downloading activity. The court rejected the BBS operator’s
asserted fair use defense since their activities were clearly commercial in nature. Further, the
nature of the copyrighted games was creative rather than informative and the entire
copyrighted works were copied, uploaded, and downloaded. This copying had adversely
affected the Sega’s sale.

(3) Commercial Web sites: The Web Page owners must be cautious of the things they post on
their Web Pages so that they do not violate the stringent provisions of the copyright laws. A
Web Page owner cannot successfully plead and prove that they were unaware about the
copyrighted material because copyright notices are prominently given in authorized software.
They also have the controlling power over the content of their pages. The owner are usually
the parties that actually perform the uploads to their pages.

(4) Private Users: A computer user who uploads copyrighted material to the Internet is liable
for direct infringement. This liability could be avoided only if he can prove the fair use
doctrine. Thus, an Internet user should not post copyrighted material on the Internet in a
casual manner.

1
839 F. Supp. 1552 (M D Fla 1993)

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Online copyright issues in India:

The reference to online copyright issues can be found in the following two major enactments:

(1) The Copyright Act, 1957, and

(2) The Information Technology Act, 2000.

(1) Copyright Act, 1957 and on-line copyright issues: The following provisions of the
Copyright Act, 1957 can safely be relied upon for meeting the challenges of information
technology:

(a) The inclusive definition of computer is very wide which includes any electronic or similar
device having information processing capabilities. Thus, a device storing or containing a
copyrighted material cannot be manipulated in such a manner as to violate the rights of a
copyright holder.

(b) The term computer Programme has been defined to mean 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. It
must be noted that Section13(a) read with Section 2(o) confers a copyright in computer
Programme and its infringement will attract the stringent penal and civil sanctions.

(c) The inclusive definition of literary work includes computer programmes, tables and
compilations including computer databases. Thus, the legislature has taken adequate care and
provided sufficient protection for computer related copyrights.

(d) The copyrighted material can be transferred or communicated to the public easily and
secretly through electronic means. To take care of such a situation, the Copyright Act has
provided the circumstances which amount to communication to the public. Thus, making any
work available for being seen or heard or otherwise enjoyed by the public directly or by any
means of display or diffusion other than by issuing copies of such work regardless of whether
any member of the public actually sees, hears or otherwise enjoys the work so made
available, may violate the copyright. The communication through satellite or cable or any
other means of simultaneous communication to more than one household or place of
residence including residential rooms of any hotel or hostel shall be deemed to be
communication to the public

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(e) The copyright in a work is infringed if it is copied or published without its owner’s
consent. The Copyright Act provides that a work is published if a person makes available a
work to the public by issue of copies or by communicating the work to the public. Thus, the
ISPs, BBS providers, etc may be held liable for copyright violation if the facts make out a
case for the same.

(f) The copyright in a work shall be deemed to be infringed when a person, without a license
granted by the owner of the copyright or the Registrar of Copyrights under this Act or in
contravention of the conditions of a license so granted or of any condition imposed by a
competent authority under this Act-

(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of
the copyright, or

(ii) Permits for profit any place to be used for the communication of the work to the public
where such communication constitutes an infringement of the copyright in the work, unless
he was not aware and had no reasonable ground for believing that such communication to the
public would be an infringement of copyright.

(g) The Copyright Act specifically exempts certain acts from the purview of copyright
infringement. Thus, the making of copies or adaptation of a computer Programme by the
lawful possessor of a copy of such computer Programme from such copy in order to utilize
the computer Programme for the purpose for which it was supplied or to make back-up
copies purely as a temporary protection against loss, destruction, or damage in order only to
utilize the computer Programme for the purpose for which it was supplied, would not be
copyright infringement. Similarly, the doing of any act necessary to obtain information
essential for operating inter-operability of an independently created computer Programme
with other programmed by a lawful possessor of a computer Programme is not a copyright
violation if such information is not otherwise readily available. Further, there will not be any
copyright violation in the observation, study or test of functioning of the computer
Programme in order to determine the ideas and principles, which underline any elements of
the Programme while performing such acts necessary for the functions for which the
computer Programme was supplied. The Act also makes it clear that the making of copies or
adaptation of the computer Programme from a personally legally obtained copy for non-
commercial personal use will not amount to copyright violation.

(h) If a person knowingly makes use on a computer of an infringing copy of a computer

Programme, he shall be held liable for punishment of imprisonment for a term which shall
not be less than seven days but which may extend to three years and with fine which shall not

9
be less than fifty thousand rupees but which may extend to two lakh rupees. However, if the
computer Programme has not been used for gain or in the course of trade or business, the
court may, for adequate and special reasons to be mentioned in the judgment, not impose any
sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.

It must be noted that copyright can be obtained in a computer Programme under the
provisions of the Copyright Act, 1957. Hence, a computer Programme cannot be copied,
circulated, published or used without the permission of the copyright owner. If it is illegally
or improperly used, the traditional copyright infringement theories can be safely and legally
invoked. Further, if the medium of Internet is used to advance that purpose, invoking the
provisions of the Copyright Act, 1957 and supplementing them with the stringent provisions
of the Information Technology Act, 2000, can prevent the same.

(2) Information Technology Act, 2000 and on-line copyright issues: The following provisions
of the Information Technology Act, 2000 are relevant to understand the relationship between
copyright protection and information technology:

(a) Section 1(2) read with Section 75 of the Act provides for extra-territorial application of
the provisions of the Act. Thus, if a person (including a foreign national) violates the
copyright of a person by means of computer, computer system or computer network located
in India, he would be liable under the provisions of the Act.

(b) If any person without permission of the owner or any other person who is in charge of a
computer, computer system or computer network accesses or secures access to such
computer, computer system or computer network or downloads, copies or extracts any data,
computer data base or information from such computer, computer system or computer
network including information or data held or stored in any removable storage medium, he
shall be liable to pay damages by way of compensation not exceeding one crore rupees to the
person so affected. Thus, a person violating the copyright of another by downloading or
copying the same will have to pay exemplary damages up to the tune of rupees one crore
which is deterrent enough to prevent copyright violation.

(c) While adjudging the quantum of compensation, the adjudicating officer shall have to
consider the following factors:

(i) The amount of gain or unfair advantage, wherever quantifiable, made as the result of the
default;

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(ii) The amount of loss caused to any person as a result of the default;

(iii) The repetitive nature of the default.

Thus, if the copyright is violated intentionally and for earning profit, the quantum of damages
will be more as compared to innocent infringement.

(d) A network service provider (ISP) will not be liable under this Act, rules or regulations
made there under for any third party information or data made available by him if he proves
that the offence or contravention was committed without his knowledge or that he had
exercised all due diligence to prevent the commission of such offence or contravention. The
network service provider under section 79 means an intermediary and third party information
means any information dealt with by a network service provider in his capacity as an
intermediary.

(e) The provisions of this Act shall have overriding effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force.

PROTECTION OF COMPUTER SOFTWARE

Copyright is about protecting original expression. Copyright protects “original works

of authorship” that are fixed in any tangible medium of expression from which they can be
perceived, reproduced, or otherwise communicated either directly or with the aid of a
machine or device.

Copyrightable work includes the following categories:

1) Literary works;

2) Musical works;

3) Architectural works;

4) Computer programmes.

In the digital medium, every web page published in the World Wide Web is to
be taken as a literary ‘copyrightable’ work. It protects all written text materials, graphic

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images or designs, drawings, any linked sound, video films or files, whether part of the web
page or web site.

The legal protection of computer software is desirable for the following reasons

◼ Investment and time required

◼ Likely future developments

◼ Protection as an incentive to disclosure

◼ Protection as a basis for trade

◼ Vulnerability of computer software

However, before we start hailing the advent of a new era and equating the patenting of
software in India to Edison’s invention of the light bulb, it would be well worth our while to
take a pause and examine the realities of software patenting. We could do this by looking at
examples of countries in which software patenting has already become the order of the day,
such as in the USA.

The patentability of software-related inventions is currently one of the most heated areas
of debate. Software has become patentable in recent years in most jurisdictions (although
with restrictions in certain countries, notably those signatories of the European Patent
Convention or EPC) and the number of software patents has risen rapidly

1. The patentability of “business methods” (often software-based) has further fuelled

the debate, especially as concerns the possibility that low quality patents might block
or impede the fledgling electronic commerce sector.
2. Since 1998 software-related inventions (and mathematical algorithms in general) are
patentable in the United States of America (US) as long as they produce a "useful,
concrete and tangible" result, in addition to the usual criteria (novelty, non-
obviousness and industrial application). However, in Europe and to some extent in
Japan, they are only patentable if "sufficiently technical in nature" (which excludes
business methods in particular), a position which has been recently confirmed in
Europe, although the legislative process is still ongoing.
3. In Europe, there is an increasing, though still relatively low, use of patents by
independent software developers in raising finance or in licensing. The main source
of protection that has allowed the software industry to grow has been the law of
copyright.

In the wake of the decision of the U.S. Court of Appeals for the Federal Circuit, of 23
July 1998, in State Street2 patent applications for business methods have soared relying
on the USA, as a test case, finds that “the patentability of computer programme related

2
State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368,

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 inventions has helped the growth of computer programme related industries in the USA,
in particular, the growth of SMEs and independent software developers into sizeable
indeed major companies". However, the study also clearly identifies concerns about the
patentability of computer implemented inventions or software in the USA. These
concerns are broadly summarized as follows:

1. The grant of allegedly "clearly invalid patents" (in particular for e-commerce), i.e.,
patents which are granted for inventions that are either not new or where inventive
step is prima facie lacking.
2. Patents for computer-implemented inventions or software might further only
strengthen the major companies’ market positions.
3. Patents for incremental innovation which is typical of the software industry entail the
economic costs of figuring out the patent holders and negotiating the necessary
licenses.
Moreover, a recent empirical study on the patentability of computer programmes in
the USA has shown that there is no empirical evidence on the relation between the
number of software patents and R&D investments, meaning that permitting the
patenting of software is not a useful way to stimulate innovation. This study
undermines one of the major arguments in support of the patent regime.

Finally and interestingly, a study by Oz (1998) shows that copyright protection is used
more often than patent protection even in the USA where there are no limitations on software
patenting.

The Ordinance in India is akin to the concept of software patenting in Europe where
the focus is not on software or computer programmes perse but that the software or computer
programmes should be “sufficiently technical in nature”, or in other words, it should have a
“technical application to industry” or should be a combination with hardware.

On the other hand, in the USA, the US PTO does not require patentable inventions to
be of a "technical" (that is, material) nature, but that they just fulfill a "usefulness" criterion.
This is the reason that in the USA, it has led to patenting of even abstract rules and methods
for performing human activities, known as "business methods", which has happened without
any legislative decision. Here, it would be relevant to note that the USA form of issuing
patents for software has resulted in a number of trivial patents being

These trivial patents are also the reason for recent discussions about the patentability
of business methods in the USA. Some observers believe that it is possible that the US
Supreme Court restricts the patentability of software-related patents, in particular that of
business methods.

Hence, we see that from the above summary of studies, that even in USA, where the
form of granting patents for software has been the longest in existence, it is facing a definite
number of problems, particularly with regard to the quality of examination of such patents on
the issue of “quality of prior art search”, clarity on the technology and of course, the
competence of the examiners for whom this a rapidly evolving and complex field.

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 India, for its part, seems to have adopted the more conservative approach of the
European patenting norms for software. Whether, in reality this will be implemented on a
rigid basis or will become broad in scope through application (as in the US), and, more
importantly, whether the Ordinance would, in fact, result in increased innovation and
inventions in the software industry, remains to be seen.

In any case, any company seeking to file a patent application for software under the
Ordinance should ensure that its invention firstly, follows the three basic tests of inventive
step, novelty and usefulness. Therefore, it is important that the software sought to be
protected is not merely a new version or an improvement over an existing code.

Further, in accordance with the specific requirements of the Ordinance with regard to
patentability of software, the software should necessarily have a technical application to the
industry or be intrinsic to or “embedded” in hardware. This is to prevent against any future
litigation or claims of infringements being raised, which is a distinct probability even after a
patent has been granted.

Moving to a more optimistic note, we must be cognizant of the fact that we have
always had very strong and aggressively drafted laws relating to copyrights, trademarks, and
patents in India. The issue India faced earlier was in recognizing the value of one’s
intellectual property rights and thereby, enforcing the relevant laws to their fullest capacity.
Thus, there always seemed to be a disconnect between policy and practice.

Here again, I believe we have seen an almost chrysalis like process in judicial
activism. It is now not a rare event in India to conduct source code raids, obtain ex parte
orders against persons using another’s intellectual property and even preventing ex
employees from working for a competitor for a specific period of time. In a recent decision
(January 3, 2005), the Delhi High Court for the first time in Indian history awarded the
plaintiff, Time Magazine, with punitive/exemplary damages for infringement of intellectual
property by the defendant. In this case, Time Magazine was awarded Rs. 5 lakhs
compensatory damages and Rs. 5 lakhs punitive/ exemplary damages plus interest and costs.

India has a very unique opportunity to make a mark in the silicon design space
because of its strong semiconductor engineering capacity and its obvious competence in
software design and services. With India’s traditional strength in software development as
well as its growing expertise in chip design, several top semiconductor and system companies
are setting up their R&D centres in India with emphasis on embedded software. Apart from
every possible international semiconductor entity having some sort of presence in India,
Indian companies, themselves, are engaged in the business of semiconductors, either through
providing the required services or directly developing embedded software.

Therefore, the Ordinance definitely has its use and relevance in today’s India,
particularly for our growing domestic semiconductor industry. This, along with judicial
tempering will definitely ensure a judicious use of patent protection while allowing the
industry to grow through innovations and inventions, thereby, mitigating the risks of trivial
patents chocking the life out of real innovations and inventions. This is the reason a patent

14
should always be treated as a “double edged sword”, to be wielded with caution and
sensitivity. I definitely have a vision for India and this includes India being a force to reckon
with in areas where it was hitherto acting as merely a back office player; be it
pharmaceuticals, software products or the new age semiconductor industry. Be warned: the
developments you see today are only a precursor of things to come and I’m confident while I
say that this is not a prophecy but a visible, tangible and definitely, indisputable, reality.

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INDIAN SOFTWARE INTELLECTUAL PROPERTIES RIGHTS

Two forms of legal protection may be specifically directed to the results of the
intellectual creativity in computer software: they are

1) Patent protection,

2) Copyright protection.

Copyright Protection of Computer Software:- The decision to protect computer

programs under copyright was in fact a radical departure from traditional intellectual property
principles. The reason is that computer software is functional- the technological means for
using general purposes computing devices. Software is not an art, music, or even literature.
Software is developed with an end use in mind.

Patent Protection of Computer Software:- In majority cases, it appears that

copyright will be the appropriate method of protecting the intellectual property in computer
software, the question has also arisen as to whether patent protection might also, or
alternatively, be available for computer programs. Certainly, if a patent could be obtained, it
would be very valuable in providing the opportunity to those developing the programs to
recoup their research and development cost. In recent years, therefore, a steady increase in
the number of patents applications relating to computers and processing system has been
noted.

World Intellectual Property Organization defines Intellectual Property as legal rights

that result from intellectual activity. The intellectual activity may include any activity in the
industrial, scientific, literary and artistic fields. According to the Center for Intellectual
Property Rights in India, the major Indian Intellectual properties typically fall into 4 major
buckets; Copy Right, Patent, TradeMark and Design Protection.

In India, the Intellectual Property Rights (IPR) of computer software is covered under
the Copyright Law. Accordingly, the copyright of computer software is protected under the
provisions of Indian Copyright Act 1957. Major changes to Indian Copyright Law were
introduced in 1994 and came into effect from 10 May 1995. These changes or amendments
made the Indian

Copyright law one of the toughest in the world.

The amendments to the Copyright Act introduced in June 1994 were, in themselves, a
landmark in the India's copyright arena. For the first time in India, the Copyright Law clearly
explained:

• The rights of a copyright holder

16
• Position on rentals of software

• The rights of the user to make backup copies

Since most software is easy to duplicate, and the copy is usually as good as original, the

Copyright Act was needed. Some of the key aspects of the law are:

According to section 14 of this Act, it is illegal to make or distribute copies of copyrighted

software without proper or specific authorization.

The violator can be tried under both civil and criminal law.

A civil and criminal action may be instituted for injunction, actual damages (including
violator's profits) or statutory damages per infringement etc. Heavy punishment and fines for
infringement of software copyright. Section 63 B stipulates a minimum jail term of 7 days,
which can be extended up to 3 years.

SUMMARY OF INDIAN GOVERNMENT INITIATIVES TO PROTECT

IPR
The Indian government has initiated various steps towards Intellectual Properties
Rights Protection.

Indian enforcement agencies are working effectively and there is a decline in the
levels of piracy in India. In addition to intensifying raids against copyright violators, the
Government has taken a number of measures to strengthen the enforcement of copyright law.
A summary of these measures is given below:

1. The Government has brought out A Handbook of Copyright Law to create awareness of
copyright laws amongst the stakeholders, enforcement agencies, professional users like the
scientific and academic communities and members of the public. Copies of the Handbook
have been circulated free-of-cost to the state and central government officials, police
personnel and to participants in various seminars and workshops on IPR.

2. National Police Academy, Hyderabad and National Academy of Customs, Excise and
Narcotics conducted several training programs on copyright laws for the police and customs
officers. Modules on copyright infringement have been included in their regular training
programs.

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3. The Department of Education, Ministry of Human Resource Development, Government of
India has initiated several measures in the past for strengthening the enforcement of
copyrights that include constitution of a Copyright Enforcement Advisory Council (CEAC),
creation of separate cells in state police headquarters, encouraging setting up of collective
administration societies and organization of seminars and workshops to create greater
awareness of copyright laws among the enforcement personnel and the general public.

4. Special cells for copyright enforcement have so far been set up in 23 States and Union
Territories, i.e. Andhra Pradesh, Assam, Andaman & Nicobar Islands, Chandigarh, Dadra &
Nagar Haveli, Daman & Diu, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu &
Kashmir, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Pondicherry, Punjab,
Sikkim, Tamil Nadu, Tripura and West Bengal.

5. The Government also initiates a number of seminars/workshops on copyright issues. The

participants in these seminars include enforcement personnel as well as representatives of
industry organizations.

As a consequence of the number of measures initiated by the government, there has been
more activity in the enforcement of copyright laws in the country. Over the last few years, the
number of cases registered has gone up consistently.

CASE STUDIES RELATED TO INDIAN IPR PROTECTION

Bangalore Aug10, 2003: Banashankari police arrested three software engineers for illegally
copying software from a company they were working for. The accused enginners, who were
working with the Ishoni Networks India Private Limited, had started a new company called
Ample Wave Communication Network in Koramangala. They had illegally copied code of
the company’s software and were using at their company, police said. Ishoni Director
Antonio Mario Alvares had lodged the complaint with Banashankari police. Police have
seized four computers, four CPUs, four keyboards, one server and one laptop from the
accused.

New Delhi Aug28, 2002: Central Bureau of Investigation officials in New Delhi nabbed
Shekhar Verma, a former employee of Mumbai-based Geometric Software Solutions
Company and a computer engineer from the Indian Institute of Technology, Kharagpur. It
turned out that Verma was accused of stealing $60 million worth of source code of a software
product of Geometric Software's US-based client, SolidWorks, and trying to sell them to

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other companies for a fortune.The American firm has the exclusive rights over the software.
(Source Rediff.com) Results of Nasscom Initiatives

Calcutta, 7 April 2000: The Enforcement Branch, Calcutta police with the assistance from
Nasscom and BSA, seized pirated software worth of Rs. 2.61 crore (US$ 6,08,000) from
companies while conducting raids in the city. 4 persons, including owners, partners and
senior level employees of the companies, were arrested for this offence. The police recovered
around 636 CDs, and 2 computers loaded with pirated software.

Hyderabad, March 2000: Hyderabad Police, with assistance from Nasscom and BSA,
seized pirated software worth of Rs. 75,16,400 (US$ 174,800) from 7 companies at a
conducted raid. 13 people, including senior level employees of the companies, were arrested
in this regard. The Police recovered around 293 CDs, 5 hard disks and 7 computers loaded
with pirated software. The estimated value of the pirated software was worth Rs.77 lakh.

Chennai, February 2000: Pirated software worth Rs.1.11 crore (US$ 253,200) was seized
by the Chennai police at a raid conducted at the premises of four outlets. A total of 6
employees were arrested which included the Managing Director of one outlet and proprietors
of each of the outlets.

New Delhi, 1st December 2000: Nasscom and BSA launched a new anti-piracy initiative –
The Reward Programme to make India's business community take note of the dangers of
software piracy. The reward offered, an amount up to Rs. 50,000 is for information leading to
successful legal action against companies using unlicensed software. The reward program
was aimed to encourage people to support the fight against piracy and to report software
piracy to the

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CONCLUSION

The problems surrounding the application of the test for the patentability of computer
programs are unlikely to deter the large producers of computer systems from seeking patents
for their products where they feel this is appropriate. This may, perhaps, be given additional
impetus in the light of some uncertainty surrounding application of copyright principles to
computer programs.

Electronic Data Interchange (EDI) has been defined as ‘ the computer to computer
transmission of business data in a standard format’. It is the means of business
communication which replaces paper with structured electronic messages. It is more secure
than using simple e-mails.Although EDI is basically concerned with commercial dealings,
there is still the potential for some messages to come within the ambit of the Data Protection
Act,1984, as ‘personal data’.

Protection of Intellectual Properties is a very critical element in the offshore business model.

There have been many cases where companies have lost their position in the market
due to the loss of intellectual property. Understanding the country’s IP Rights and following
the best practices described in this paper can drastically reduce the risk of loosing the
company’s intellectual property. Commitment to protect the intellectual property of a
company should be developed and nurtured at all levels of the organization.

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BIBLIOGRAPHY
Websites:

1-www.scconline.com

2-www.manupatra.com

3-www.indiankanoon.com

Books referred:

1-“law relating to intellectual property right” by V K Ahuja.

2-“intellectual property right” by Neeraj pandey and khusdeep dharni

3-“law relating tointellectual property right” by B L Wadhera

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