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In India you can protect software that you’ve created only by copyright, and not by patents as in the US. It is classified as a ‘literary work’ instead of an ‘invention’, which performs a mechanical function. This is the problem area as far as Indian substantive law is concerned. We follow the European model that affords copyright protection to software unlike patent protection that is granted in the US.
In this article you’ll find answers to some such common issues on copyrights.
| If you make the software that you’ve developed available for free or commercially, and another company claims that it has actually been created by it, what can you do?
This would depend on the evidence to prove the originality of the work or creation. Registration of copyright provides for authentic verification. If you’ve registered your work with the Registrar of Copyright, it would strongly tilt the balance in your favor. |
How does a copyright protect your work?
If you’ve created ‘original works of authorship’, copyright gives you the exclusive right to:
- Make copies of the work (reproduction right)
- Prepare derivative works based upon the work (adaptation right)
- Distribute copies of the work publicly by sale, rental, lease, or lending (distribution right)
- Perform the work publicly (public performance right)
- Display the work publicly (public display right)
 When is a copyright infringed?
With some exceptions, a copyright is infringed if someone performs any act described above without the permission of the
copyright owner.
Is a copyright recognized worldwide?
Copyright is recognized virtually worldwide under the Berne Convention and the applicable law of its member nations.
How can you register a copyright?
For a work to qualify for a copyright, it must be original and it must be fixed in a tangible form. The originality requirement is minimal; a work need not be ‘novel’ within the meaning of patent law in order to qualify as original. Examples of works fixed in a tangible form are printed novels, phonograph records, multimedia CDs, films, and sheet music.
| Does the software that you develop in your free time (even though you are employed elsewhere) with your own resources belong to you? Can you copyright it?
The software or basic work product developed in free time and not in the normal course of employment ‘belongs’ to or is the property of the individual, even though you are employed by a company. This is provided that you don’t use company resources.
In this case, not only can you copyright it, but you must do so! At the same time, you must ensure that in the ‘work for hire’ contract that you sign with your employer, there is no room for manipulation. |
The registration of copyright is not compulsory either for acquiring copyright or for enforcing copyright by infringement suit. You can, however, register copyright with any one of the zonal offices of the Copyright Office for a nominal sum of few hundred rupees. The entries made in the register maintained by the Office, or extracts therefrom, will be admissible as evidence in all courts without further proof or production of original.
What is the Indian copyright law regarding software source code?
In India, software source codes and object codes are subject to copyright as ‘literary works’. Software, like any other work, must meet the requirements of originality and fixation to qualify for copyright protection. The ‘fixation’ requirement requires that the source code be printed on paper, although storage on disk is also sufficient. As with any other copyright, what is being protected by software copyright is the particular expression of the idea or process it conveys, not the idea or process itself.
Who does the copyright product belong to?
Under normal circumstances, the author/creator of the work owns the work, unless of course, the work is made in the course of employment. The general principle is that if a person is employed to do a job and is paid for his services the product of his labour, subject to any agreement to the contrary, belongs to the employer. The copyright in a work done by an employee in his own time and not in the course of employment belongs to him.
Rodney D Ryder Patent vs copyright
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