This article has been written by Shahil Singh, a student from Symbiosis Law School, Hyderabad.

Abstract

There is legal protection given to the creators of works originally created by him/her under Indian Laws. This literary/original work includes computer programs and compilations, languages, websites and web pages designed by the creator, databases, software codes/schemes and any other form of material. The ongoing digitalization and technological advancement draw concern of the government to make laws governing infringement of such works. Modern problems such as illegal duplication and distribution of the original work like software have a significant impact on the economy. The copyright infringement of these computer programs means unauthorized copying of software programs through hacking or any other means, selling those duplicated programs in the market. These pirated works cause damage to not only its developers but also their users. The paper thus explains the ongoing menace of the software piracy in India, the online piracy of software programs, hacking and laws and mechanisms to protect such crime as well as judicial approach. The paper will emphasize the Indian Copyright Act and Information Technology Act as well as their compliance with the international treaties.

Introduction

The world over the years has seen rapid growth in Information technology, advancement in various technology and digitalization. The definition of “developed countries” has been changed over the decade and now it means country successful in technology and digital advancement. For these, the country’s duty is to protect the work of the creator because of whom the country is growing economically. These advancement and protection have caused rapid expansion and growth of software companies around the world. This growth has also resulted in the growth of criminal activities and unlawful cyber activities such as hacking and software piracy. Software companies have been deeply infected by the piracy which is not only harmful to the software developers but also harming the users of this software. Technology advancement has made easy for anyone to copy the programs, duplicate it and sale it to the market. The most common form of these activities is theft and fraud. But due to digitalization the new concepts of data storage such as cloud computing processes has made it difficult to recognize the “cause of actions” arises as per the simple procedural or substantial laws of the country as a result the software piracy has been regarded as the worst problem facing by the software companies and a panic attack to its developer and users. The use of computers software has made the lives of the people easier and manual work has been completely transformed into the technical work but abuse of such tools has created serious issues such as piracy which is an ongoing problem for various countries in the world. Due to these ongoing problems around the world, there is dire need to develop laws in compliance with the international treaties governing such criminal activities.[1] 

Software piracy is defined as a crime relating to illegal copying/duplicating, selling or installing of the copyrighted software. However many jurisprudence also includes copying of programs and codes of copyrighted software to develop new software also as piracy. The copyrighted software is generally a license which the licensor sale to the licensee for a certain amount which can only be used by the single authorized user who has purchased the license. This software can be used in two or more devices as long as the licensee is only the user. The license terms and agreement which is digitally signed by the licensee as “I agree” is a trust that the licensee will not make multiple copies of the software and sale it or give it to other users who has not been authorized by the licensor. If the licensee does the above-mentioned act this will amount to a violation of license terms and agreement and these defeat of trust will amount to software piracy. Although all the computer users are aware of software piracy and their repercussions but piracy still exists as a global concern around the world. Like any other infringement of copyrighted work, piracy is also defeating the creativity. Since the economy of the country is now dependent upon such computer technologies there is a dire need for the protection of copyrighted material through law. There is a survey conducted among the 20,000 users and enterprise users of the personal computers which showed that 43 per cent of software which is installed in the PC is unlicensed and unauthorized around the world in 2013. The total loss which is credited due to such unlicensed instalment of copyrighted software is more than 60 billion in dollars. The survey was conducted as an initiative naming “Global Software Survey” by Business Software Alliance partnership with International Data Corporation[2]. This survey was alarming for the government around the world to make stringent laws for the protection of copyrighted softwares. In India, both Judiciary and Legislative authorities is constantly fighting against this curable disease by judicial approach and Acts such as Indian Copyright Act and IT Act and there amendments in compliance with International treaties respectively[3].    

The Menace of Software Piracy

It is undeniable fact that software piracy and crimes relating to it is booming around the world in this century is due to the advancement of technologies and digitalization and credit should be given to the Internet. Due to the Internet, this problem has now become a transnational problem. Such infringement of copyrighted software due to the internet has not only caused the economic problem to the owner/creator but also the user of such software. Today value of the unlicensed software worldwide has reached more than 60 billion dollars, Indian revue loss is attributed to around 3 million. India is ranked 43 though not in the top 30 list for the highest piracy rates. 64% of the total software users are using the pirated version of the original softwares[4]. In response to this threat, the Internet poses the curable copyright law and its action is much slower in past. These provide ample opportunity to the hacker or pirates to steal/use the copyrighted software illegally without a license. Due to digitalization the new concepts of data storage such as cloud computing processes have made it difficult to recognize the “cause of actions” arises as per the simple procedural or substantial laws of the country. The law must with giving protection to the owners also extend to important range of access of the software in order to protect theft and fraud. The law should be such that it will be easy for the plaintiff/petitioner to recognize the cause of action and jurisdiction of the court to entertain the matter. It is true that zero piracy rate is difficult to be achieved due to digitalisation and widespread Internet but by recognizing the loopholes in the law governing the issue, properly emphasizing and analyzing the mechanism provided by the International organization aiming to reduce software piracy and focusing more on the role of service providers which includes search engines in restricting and promoting the service providers the goal of reducing the software piracy to almost negligible can be achieved[5].

Software Piracy in India

Conflicts on availability of Computer Softwares

Due to advancement of technology, digitalisation widespread use of internet the manual works has been completely transformed into technological work. The world has become significantly small in a single click of the computer. All the information is available on the internet. The world has seen major development due to these inventions and advancement of technologies. This technology has brought significant change in everyone’s life around the world as business and commerce to which the economy of a country is depended is now itself depended upon a software. This advancement has though enabled everything but has brought many problems with it. The usage of internet has been successfully helping in all kinds of research but has brought complex problems especially in the field of cyber laws and infringement laws with it. Infringement of copyrighted software also known as piracy is the most common but complex problem which had been generated by such development of the technology. The copyright laws aim to protect original/literary works created by its creator/owner these works include cinematographic tapes, sound recordings, musical and dramatic works, films and literary works. The computer software programs are also included in the original works of the creator/owner and are one of the fast-growing segments in the economy of the country and thus protected under the Indian Copyright Act and Information Technology Act. There is also patent protection given by certain countries such as the USA and Japan for the protection of copyrighted softwares[6].

Computer software programs is made through programming languages which enable it to hold a collection of data which prescribed certain instructions to the computers for action which has to be done or not to be done, in manners in which it has to be done according to the command given by the users of the software. The programming language which is compiled together and made as the software is created by the programmer or operator and is then transferred into the language understandable by the computer. It is thus the list of instruction which user of the software desire to be done by the computer. There are three types of softwares which include system software dealing with the hardware components of the computers, the application softwares dealing with computation process and the programming software for the programmers to develop a software by writing programming language in it. These softwares are available to the users by way of freeware, payware, shareware and sometimes open source.[7]

Evolution of Piracy through rise of Internet

There is misconception that software piracy is the now criminal activity attributed to the advancement of technologies and use of Internet but it is evident that piracy is much older and in fact was easy as during the 60s the developer sale the computer softwares along with the computer hardware which makes them easy to be steal. But after the technological advancement and use of software in almost everything has caused separate creations and selling of softwares by respective separate software companies. These companies give license to the users who purchase the software violating to which the infringement of copyright takes place. In older days the copyright was only given to the code which is used to create a software as during that time only the copying of the code by the competitors where prevalent. There was no concept of software piracy. The code which is used to create software cannot be used as creating another software. These codes include object code, source code and documentation and the copyright law was protecting only the above mentioned codes. After few decades of the advancement of technologies, the world saw the rise of intermediaries which where the single users of the softwares and they used to do their customers jobs by installing the softwares in everyone’s computers through floppy disks and CDs through process called mail trading thus giving rise to piracy.

Rise of internet during 1980s witness the rise of new kind of software piracy when thieves use dial-up Bulletin Board Systems used to upload and download software to computer owners. They log on to telephone connections, download softwares and trade floppy disks via mail system. The activity was so complex during the time that law enforcement could do nothing to curb the theft and off course the law was not much advance. The BBS systems distribute the software for free or less money. The advance of internet during 90s gave rise to more distinct form of stealing such as hacking.  The new form of systems such as Relay chats, creation of public mailbox, File Transfer Protocol which allows computers to store and share data from one computer to another made the piracy easy. There are many organizations fighting against the piracy the eminent one is Business Software Alliance an NGO set up in 1988. The BSA represents world class software makers with aim to protect infringement of copyright software around the world. With the aim of promoting legal environment and standard in which software industries can thrive the BSA make laws in compliance with international treaties. 

Protection of Computer Software in India

Indian Copyright Act, 1957

Sec. 13(1)(a)of Indian Copyright Act give protection to all forms of original works which include literary works, dramatic works, sound recording, cinematographic tapes and films. The computer programme is included in original literary work of the Act and thus its infringement will attract serious penal and civil actions. Amendment brought in the Act of 1957 in 1994 include computer programme as original literary work in the Sec. 2(o) of the Act. This 1994 amendment also added provisions for stringent punishment for the act of infringement of copyrighted software programme. The Act clearly states that any act which is done by an unauthorized person with the software which was legal to be done by the authorized licensee person will amount to the act of infringement. The Act provides for civil remedies such as injunctions, damages and other administrative measures taken by the administrative authorities for the protection of copyrighted software.

Sec. 51(a)(ii) of the ICA, 1957 of the Act states that when a person permits any place to be used for communication of the copyrighted software or other work to the public for generating profit this will amount to infringement of copyright. The term “communication to the public is defined in Sec. 2(ff)of the Act as heard, enjoy or see the issue of copyrighted work but it lacks the liability of the Internet Service Providers as it does not provide any express provisions to encompass the liability of Service providers like other countries.

In addition to civil remedies the amendments in Act also provides criminal remedies such as punishment for an infringement of copyrighted work. Sec 63B of the Act provides for punishment of minimum 7 days and may extend to maximum 3 years and fine up to 15,000 and which may extend to 2 lakhs as per the discretion of the judge. This punishment is attracted when a person unauthorised uses copyrighted software with knowledge.  The point to be noted is this punishment is also attracted when the attributed act is done without any gain/profit. Other kinds of criminal liability other than end-users are also given in the Act. There is a separate chapter dealing the “offence” which includes the act of use and also abetting the use of infringement of copyrighted work. The Internet Service Providers encouraging the piracy without filtering there search by using the upstream filter is also encompassed in this chapter. This chapter penalizes both the user and abettor of the infringed copyrighted work. The Act also penalizes the company in its Sec. 69(1) which states that every person running, managing the affairs of the company and responsible to the affairs of the company will be punished for using or abetting the infringement of copyrighted work. This section exempts the company who takes the defense of not having the knowledge or has taken sufficient measures which where suppose to be taken prudently to prevent the infringement of copyright.   The Act also encompasses directors individually or board whose permission where taken for the commission of the offence likewise the Act penalizes both individual and company and also the company which provides Internet services.

Information Technology Act, 2000

This is the Act establishes itself as a boon for the ongoing infringement of the copyright software. Sec. 2(w) of the Act covers all Internet service providers and other providers as intermediaries who on behalf of another person receives, stores the records and provides such records to another person this includes cybercafés, internet service providers, auction sites, online websites for payments and other search engines. The Act though fails to provide the extent of liability or quantum of liability which can be put against the service providers. The services providers can also exempt from the section of they prove that they have no knowledge of the commission of the offence or they have taken the prudent man’s care in order to prevent the commission of the offence. There are three kinds of service provided by the Internet Service providers dealt in the section this includes; transmission of third party information, link hosted by the Internet Service Providers and the storage of third party data. Thus the Act acts as a safe provision for the search engines and the Internet Service Providers to exclude themselves from the third party contents thereby excluding the obligations of taking efficient measures to reduce or stop the piracy[8]. Furthermore the Act fails miserably in the situation when any person has drawn the concern of the service providers regarding the use of infringes work or piracy in their services i.e., the Act does not say expressly that what will be the situation when the ISP stated that they have no knowledge that there services are being used for infringement of copyrighted work. There to take the benefit of this exemption it has to be shown that they have not initiated the transmission of the wok, neither receive any transmission of the work nor modify any information in transmission. Thus the Act does not provides for the imposition of any obligation but only states the due diligence which has to be taken care of by the intermediaries while transmission of the work . The Ministry of communication and Information technology however put forward the mandatory guidelines of due diligence which has to be taken by the intermediaries and also such guidelines has to be provided by their subscribers too. The guideline is given under Sec. 79 of the Act, 2000.

Rule 3(4) of the Act has been boon for owner of the copyrighted work as it provides mandatory provision to remove the stored pirated material from their services when the material is being detected and is same conveyed to the respective service providers failing to which an appropriate action could be brought against the service providers[9].  

Judicial Approach

The courts in India has taken various steps for the protection of copyrighted computer programmes by analyzing the courts of the USA and European countries the court has provided a huge amount of damages to the plaintiff against the defendant. In the case of Microsoft[10] in 2006 the Delhi High court took into consideration the facts of the case the defendant has infringed the copyrighted work of the plaintiff such as Microsoft office 2000, Microsoft office 9 and held that there is a dire need for the protection of piracy in the country due to the growing menace of infringement of copyrighted material and ordered huge damages to be paid to the plaintiff by the defendant.[11]

In another famous case of Super Cassettes Industries v. Yahoo Inc.[12], the plaintiff contended that the defendant has infringed there copyrighted material through there portal. The court order injunction for restraining the reproduction and transmission of the copyrighted material of the plaintiff through there portal. In a case like Microsoft corporation v. Mr Kiran and Anr.[13], the court observed that software piracy has become a menace in the country and there needed appropriate measures and stringent Act to protect the infringement of copyrighted material. In some cases, the court also granted an injunction against service providers to restrain from using, storing, receiving and selling of transmission of copyrighted material through their websites.

Institutions set up in India for fighting infringement of copyrighted work

In India there are very few institutions or organization fighting against the menace of the piracy at state level. National level though has National Association of Software and Service Companies fighting against the piracy and also proposed setting up a National Cyper crop Committee which will help government and judicial and quasi judicial authority in curbing the menace of software piracy[14].

Conclusion

The advancement of technologies and the growth of Internet can be argued as the reason for the growth of software piracy in the world. The protection against such act of offence for owner and for the users has become important objective of every government around the world. The director of World Intellectual Property Organisation[15] stated that in order to meet the needs of the society with the encouragement of creativity the country while implementing law has to draw balance between availability of work for society and dignified economic benefits for the creator/owner of the software to encourage the creativity thereby encouraging the technological advancement and digitalisation and economic benefits attributed to such advancements. India through its copyright law has successfully drawn the balance as its Sections provides both for the protection of copyrighted work and also for the exception of using the copyrighted work for the society such as for education purpose. The Indian laws provide for both civil and criminal remedies for the infringement of copyrighted material through the quantum of liability and compensation both depends upon the discretion of the court. The law not only encompasses users and abettors of the infringement of copyrighted work but also encompasses the service providers to restraint the transmission, receiving and modifying the transmission of the copyrighted work. 

Bibliography

• 8th Annual Global Software Piracy Study, 2010 commissioned by Business Software Alliance and International Data Corporation., http://portal.bsa.org/global piracy2010/dowmloads/ study_pdf/2010_BSA_ Piracy_Study-Standard.pdf .
• Apar Gupta, “Widespread Blocking to File Sharing Websites Reported after a John Doe Order is Issued for Don 2”, available at: http://www.iltb.net/2011/12/don2johndoe/.
• Arnav Bishnoi, ”Law and practice of online software piracy in India.”, Rajiv Gandhi National law University Patiala, p. 5
• Business Software Alliance. The Compliance Gap [online]. URL:http://globalstudy.bsa.org/2013/downloads/studies/2013GlobalSurvey_Study_en.pdf.
• Daniel J. Gervais, “Towards a new core International Copyright Norm: The Reverse Three-step Test”, 9(1) Marquette Intellectual Property Laiw Review 30 (2005).
• K.Verma and Raman Mittal, Legal Dimensions of-Cyberspace 168 (Indian law Institute. New Delhi, 2004), p. 9
• Tabrez Ahmad, “Copyright Infringement in Cybe- Space & Network Security: A Threat to e-commerce”, available at: http://www.legalserviceindia.com/article/1462-Copyright-infringement-in-Cyberspace-&- NetworkSecurity.html.

Endnotes

[1] Business Software Alliance. The Compliance Gap [online]. October 2019. URL:http://globalstudy.bsa.org/2013/downloads/studies/2013GlobalSurvey_Study_en.pdf. Accessed 1st October 2019

[2] 8th Annual Global Software Piracy Study, 2010 commissioned by Business Software Alliance and International Data Corporation., http://portal.bsa.org/global piracy2010/dowmloads/ study_pdf/2010_BSA_ Piracy_Study-Standard.pdf (Visited on October 1, 2019).

[3] Daniel J. Gervais, “Towards a new core International Copyright Norm: The Reverse Three-step Test”, 9(1) Marquette Intellectual Property Laiw Review 30 (2005).

[4] S.K.Verma and Raman Mittal, Legal Dimensions of-Cyberspace 168 (Indian law Institute. New Delhi, 2004), p. 9

[5] Arnav Bishnoi, ”Law and practice of online software piracy in India.”, Rajiv Gandhi National law University Patiala, p. 5

[6] Tabrez Ahmad, “Copyright Infringement in Cybe- Space & Network Security: A Threat to e-commerce”, available at: http://www.legalserviceindia.com/article/1462-Copyright-infringement-in-Cyberspace-&- NetworkSecurity.html (Visited on October 1, 2019)

[7] Arnav Bishnoi, ”Law and practice of online software piracy in India.”, Rajiv Gandhi National law University Patiala, p. 7

[8] Apar Gupta, “Widespread Blocking to File Sharing Websites Reported after a John Doe Order is Issued for Don 2”, available at: http://www.iltb.net/2011/12/don2johndoe/ (Visited on October 1, 2019).

[9] Information Technology (Intermediaries guidelines) Rules, 2011

[10] Microsoft Corporation v. Deepak Raval,, MIPR 2007 (1) 72.

[11] Apar Gupta, “Widespread Blocking to File Sharing Websites Reported after a John Doe Order is Issued for Don 2”, available at: http://www.iltb.net/2011/12/don2johndoe/ (Visited on October 1, 2019)

[12] Super Cassetes Industries v. Yahoo Inc, CS(OS) No. 1124 of 2008

[13] Microsoft corporation v. Mr. Kiran and Anr,, 2007 (35) PTC 748 Del.

[14] Arnav Bishnoi, ”Law and practice of online software piracy in India.”, Rajiv Gandhi National law University Patiala, p. 8

[15] Francis Gurry spoke for the future of copyright at a conference, held at the Queensland University of Technology, Australia, October 1, 2019.

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