Software privacy in IPR (Intellectual property rights)
Authored by Pavitra Somani
Keywords: Software privacy, software piracy, copyright, trademark, technological advancement, original works.
This Article has been written in phases and deals with the topic “Software Privacy in IPR”. This article elaborates on the protection and shield given to the software industries by the Intellectual Property Rights such as Copyright, Trademark. Also it talks about the software privacy and therefore the occurrence of software piracy and its evolution. Although the growth and advancements lead to growth of an economy but it also leads to various threats such as software privacy. It shows the methods and acts and laws established by India to balance the threats and to reduce them effectively.
Intellectual property protection in software industry
Intellectual Property Rights are the foundation and one of the most important pillar of software industry. Therefore, all the new development taken or any new innovation taken place in the software industry is backed up by the copyrights, trademarks and patents. The software is protected by both patents and copyrights, on the other side trademarks protect the labels as the names and symbols used to identify the products or software in the marketplace.
The protection of copyright for the software products was internationally acclaimed and established by the agreements made by the World Trade Organisation on the Intellectual Property Rights.
Section 2(o) and Section 13 of the Copyright Act, 1957 which define what work can be copyrighted and make the provision of copyright available to the software programs which are to be run. And it is also observed and mentioned that the copyright owner has many rights and according to them none can copy, distribute, sell his work and if one does so, a violation of his rights will take place and he will be punished for the copyright infringement.
Trademarks also help the software to protect the names and symbols used by the company for their software programs, it helps in protecting the brands of software but will not protect the program code itself from being copied, sold or imitated. To protect the creativity of the code, copyright will be the right choice to be initiated.
Introduction to software privacy in IPR
In the recent times a country is taken as to be a “Developed Country”, it has to be successful and fruitful in the technological forefront and also had led to the advancement in technology for the workings.
The world has become a global village and has seen a spontaneous growth in the Information Technology and also improvement and progress in the digitalisation and technology in the world. And if this technology judges the standard and the capability of a country it is important for the country to safe guard there work and provide protection to this and protect the creator who is helping to let the economy develop and grow.
As a coin has two sides, every pro follows with a con. The technological and digital expansion does help the nation to develop and grow itself but there are disadvantages to it also, as more technological advancements more will be the criminal activities relating to computers and internet and more unlawful activities such hacking, piracy especially software piracy will increase in number.
Although the technological advancements have made everything easier but these acts of software piracy has made it difficult to recognise causes of actions. The use of computers have the human life and work both easier but the violation of rights by using various ways such as piracy has led lot of obstructions and disadvantages to the software industries. Therefore there is an urgent need to develop laws for it and the Indian laws and acts such as the Copyright Act, and the IT Act along with their amendments are fighting for removing the cons.
Software Piracy means the thieving of a software which is protected legally. When the software protected by copyright is stolen, modified, distributed, copied or sold. This act of software piracy may also be considered as copyright infringement when they do not compensate or repay the holders of copyright for using their creative and innovative work.
Software piracy makes the people who steal the original ideas and copy the copyrighted work making it illegal and therefore punishable. If the defence uses the excuse of unintentional, unknowing act of copying the copyrighted material, it has to be proven by the one pleading that defence.
Protection of software of computer in India:
The Indian Copyright Act, 1957:
Under the Indian Copyright Act, Section 13(1) (a) gives protection to the work originally done in forms of films, cinematographic tapes, dramatic work and sound recording. The computer programing was taken under the original work through the Amendment brought in the Copyright Act, 1957 in the year 1994. This was included in the Act through the Section 2(o) of the Act. And also the punishment for the infringement of copyright by copying the computer software programs was also added in the Act through the Amendment.
The copyrighted software if permitted by a person to use any place for communication of the same to the public for gaining a profit, will lead to copyright infringement under the Section 51(a) (ii) of the Copyright Act, 1957. And Section 2(ff) of the Copyright Act defines the communication to public.
Some of the criminal remedies like punishment for copyright infringement were also added through the Amendment Act. Section 63B provides with the punishment for the copyright infringement of the copyrighted software intentionally having the knowledge of the same. It mentions the punishment to be of minimum 7 days and may extend till 3 years maximum and fine of 15000 which may extend till 2 lakhs as per judge’s discretion. Also the Section 69(1) states that any person in the management of the Company is responsible for using or abetting the act of infringement of copyrighted material. Abetting the act of infringement and also using the copyrighted work is included in the section of offences in the Act. And under these sections the abettor and the user are both punished for the act of copyright infringement.
In the case of Microsoft Corporation v. Deepak Raval a request was taken into consideration of copyright infringement of the program of Microsoft office 2000 and also observed that there is an important and urgent need to protect software piracy and made the wrongdoer to pay huge damages.
Also in case of Microsoft Corporation v. Mr. Kiran and Anr., the court saw a dire need to bring appropriate Acts and take the measures to reduce the threat of the growing acts of software piracy.
In the case of Super Cassettes Industries v. Yahoo Inc. the court also passed an injunction making the progress and development in the copyright infringement laws through the help of the courts of law.
Information Technology Act, 2005:
This Act is a shining armour for the dire need to control the number of cases and acts of infringement of copyrighted software. All the internet service providers are protected by the act and also all cybercafés, online websites and search engines are shielded by the Act under Section 2(w). The Act helps the online service providers to exclude themselves from third party and therefore prevents from piracy. It also lays down the guidelines to prevent and stop the acts of privacy by taking concerned care while transferring of the information and files. Also there are protective guidelines provided under various sections one of which is Section 79 of the IT Act, 2000. Also the Rule 3(4) of the Act has proved to be a positive element for the copyright owners as it states to mandatorily remove the pirated material from the services.
There have been some institutions set up to meet the need of the growing offences under the copyright infringement of software. There are state level organisations fighting against the threat of piracy, National level organisations such as National Association of Software and service companies. There was also a proposal to make a National Cyber Crop Committee to help judicial authorities, government to reduce the acts of software piracy and maintaining the software privacy in IPR.
The number of the cases of software piracy has been rising. Although the growth and advancement of technology has led to development of many things but there are negative things also developing due to it and software piracy is one of them. The piracy of software has evolved overtime. And for the protection of the same India has brought laws, Acts and Rules shielding the owners of the copyrighted work. Indian laws have worked on both the civil and criminal remedies and also make the act of piracy a punishable act. Hence, India has created a balance and therefore there is a protection of software privacy but the fight to make it better will continue in the ever changing world of technology.
 Microsoft Corporation v. Deepak Raval, MIPR 2007 (1) 72  Microsoft Corporation v. Mr. Kiran and Anr., 2007 (35) PTC 748 Del.  Super Cassettes Industries v. Yahoo Inc., CS(OS) No. 1124 of 2008