How to Copyright Source Code in India

January 29, 2019
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How to Copyright Source Code in India?

The software development industry in India and the world over has always been, and will continue to be, driven by innovation. If an IT entrepreneur or tech-startup would like to have total control over their creations, they must utilize the tools of protection provided them by law.

Whether you are a start-up entrepreneur looking to secure the lifeblood of your business, or a C-suite executive aiming to protect your vital source code; this article will provide an overview of how you would go about registering your software’s programming code in India, its processes, requirements, and litigation.

As you may already know, the best way to safeguard your source code is to treat it as intellectual property. This entails obtaining legal copyright to provide you with much-needed protection and remedies against source code theft and other infringements. And given the intense competition in India’s software development and related sectors, obtaining copyright for your business’s crown jewels is pivotal to long-term success.

Why Should C-Suites Execs & Tech Entrepreneurs in India Copyright Source Code

Over the past two decades, significant investments and a consistently high level of competition mean India’s tech and software industry is booming, with many tech hubs such as Bangalore gaining a reputation rivaling that of Silicon Valley. In 2018 alone, India added 1,200 new technology start-ups, making up a total of 7,700 tech start-ups in the country, the third largest in the world. The country’s IT-BPM sector, with approximately 17,000 companies, is expected to hit $167 billion in revenue for the previous financial year 2018-19. Unsurprisingly, this number is expected to reach $350 billion by 2050, according to India’s Electronics and IT Minister Ravi Shankar Prasad.[1]

Undoubtedly, established tech companies and new start-ups will all be vying for a piece of this lucrative pie. But how many will fall by the wayside from data leaks and source code theft? The risk of having your source code stolen or duplicated, and in the worst scenario, used by a competitor is not one you can afford. As such, the importance of ensuring a competitive advantage by copyrighting your software and source code should never be underestimated.

In addition, the rise of app and software development outsourcing (India’s IT/BPM industry accounts for 37% share of the global outsourcing market) has meant that an increasing number of start-ups and tech companies find themselves in legal strife as they try to secure ownership of core digital assets. The most important of which is of course, your main proprietary asset, or source code.

As in many countries, source code in India is recognized as ‘literary work’ and can be protected under copyright laws, domestically and internationally. Specifically, source code copyright in India is achieved as part of copyrighting your program or software, by registering with the Indian Copyright Office.

Before we get into the registration process and requirements, let’s take a look at the intricacies of software copyright law in India, its history, and some reasons why you should consider copyrighting your source code.

Existing Copyright Laws of India

Before we get started on how to register your source code, let’s get some context by familiarizing ourselves with the foundations of India’s Copyright Laws.

First off, the Indian government defines a computer program or software, including its source code and object code as ‘a set of ordered instructions that enable a device to carry out specific tasks’. As such, source code is protected under software copyright governed by the Indian Copyright Act of 1957, which was modeled extensively on the 1956 Copyright Act of the United Kingdom.

This Act forms the main basis of all copyright law in the country. To meet with domestic and international requirements, over the years it has been amended six times till date (1983, 1984, 1991, 1994, 1999, and 2012). The Copyright Act 1957 and subsequent amendments all clearly define elements such as the rights of the copyright holder, position on rentals of software, the rights of users to make backup copies as well as the punishment and fines for copyright infringement. In court, the Act is supported by and often utilized in conjunction with the Information Technology Act and International Copyright Laws. [2]

Will Indian Copyright Law Protect my Source Code Internationally?

Indian Copyright Laws only offer protection of copyright domestically. Hence, to secure protection for Indian works in foreign countries, India has become a member of the following international conventions on copyright:

  • Berne Convention for the Protection of Literary and Artistic Works
  • Universal Copyright Convention
  • Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement

Indian copyrights of nationals or entities, as part of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention, and the TRIPS Agreement, are given copyright protection in all member countries. [3]

Let’s consider some advantages of copyrighting source code.

What are the Benefits of Copyrighting your Source Code?

  • Registering IPR such as source code establishes a public record of the copyright claim, as well as a prima facie evidence in court to confirm the validity of the copyright and ownership.
  • Before an infringement lawsuit can be filed in court, registration is required for software of U.S. origin, in India this is not required. However, registering source code in India will allow the owner of the copyright to register with the U.S. Customs Service for protection against the importation of infringing copies.
  • Under Indian copyright laws the creator of computer source code, object code, and software is provided with the following rights:
  1. Ability to reproduce the code or software in any material or electronic form
  2. Ability to create and issue copies of the code or software
  3. Ability to make any adaptations to the code or software
  4. Ability to license and sell the code or software to any other person or entity
  • If the copyright registration is made within three months after publication of the software, source code, or object code or prior to any infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court. Otherwise, only an award of actual damages and profits is available to the copyright owner. As you can see, the remedies for copyright infringement are listed below.

Remedies for Infringement

  1. Temporary and permanent injunctions
  2. Impounding and destruction of infringing copies
  3. Actual monetary damages plus the infringer’s profits
  4. Statutory damages
  5. Court costs and reasonable attorney’s fees

What happens if the offender is found guilty?

If an individual is convicted of hacking or IP theft, he or she can be convicted under Section 66 or Section 67 of the Indian Copyright and IT technology Act. The punishment for which is three years imprisonment and a Rs 1 Lakh fine ($1440), or five years imprisonment with a Rs 2 Lakh ($2,880) fine respectively. These are the general guidelines; however, the severity and nature of punishment may vary on a case-to-case basis at the court’s discretion. [4]

What’s more to Copyright Law in India?

For the most part, copyright laws protect the form of expression of an idea, and not the idea itself. For example, with software, this means that a program, in both human-readable (source code) and machine-executable form (object code) are eligible for copyright protection. However, the methods and algorithms within a program are not considered a protected expression. Importantly, under India’s Copyright Act, source code and object code are protected against literal copying.

Both the Copyright Act of India and the international TRIPS Agreement express that ‘computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention 1971. Accordingly, expression in C such as:

#include  int main() {     std::cout << “Keep Source Code Safe!

“; }

or in Ruby:

for i in 1..1     puts “Keep Source Code Safe!” end

has the same essential characteristics, in terms of information management and intellectual rights, as the English expression in pre-formatted text such as:

Print: ?Keep Source Code Safe!?

This example illustrates that just as the text you are reading presently is machine readable for example through optical character recognition, computer program source code is also readable by an individual fluent in programming language. Under the Indian Copyright Act, they are considered identical.

In the context of software, copyright is obtained automatically when the source code is written. However, if you wish to enforce copyright against someone making an unauthorized duplication or use, say for example a rogue employee is looking to sell your source code to a direct competitor, you MUST obtain a certificate of registration of the software containing the source code from the Indian Copyright Office.

It is recommended to seek copyright protection for your source code regardless of whether the code is a trade secret, released only as object code, or even if it is “open-sourced”. In this way, you will have legal standing to fall back on in any given circumstance.

Furthermore, in the last few years there has been a steady trend by Indian courts to enforce IP law. This is best exemplified by the famous IP Theft case of Time Incorporated v. Lokesh Srivastava 2005, where the court ruled,

“This court has no hesitation in saying that the time has come when the Courts dealing with actions for infringement of trademark, copyrights, patents etc., should not only grant compensatory damages but award punitive damages also with a view to discourage and dishearten lawbreakers who indulge in violations with impunity out of lust for money so they realize that in case they are caught, they would be liable not only to reimburse the aggrieved party but would be liable to pay punitive damages also…” [5]

This case reflects the risk and repercussions of IP theft by employees. As company data is often accessible by employees, it becomes vulnerable to IP infringement. With the ever-growing and highly competitive software development industry in India, it is essential to provide adequate protection of key assets such as source code by ensuring confidentiality clauses are in employment agreements, as well as having legal copyright as an infringement deterrent and for remedial purposes.

How to Copyright Source Code?

Now that we have a general understanding of Source Code Copyright in India, let’s looking into how you would actually go about obtaining one.

Registration Requirements and Process for Filing Copyright

To apply for software copyright registration, you will require 3 essential components:

  1. A completed application form (submitted in person, via post, or online)
  2. Non-refundable filing fees
  3. Non-refundable deposit

Registration Channels

  1. Online Registration
  2. Fill-in-Form at the Copyright Office
  3. Download paper form, fill in, and send by post to the Copyright Office.

You can easily create an account at the website of the copyright office, fill in the form, take printouts and send them to the copyright office at their address. To download, or for a look at what the copyright form looks like visit:

http://copyright.gov.in/Documents/Copyright_Rules_2013_and_Forms.pdf [6]

The government fee for registration of software is INR 500.

For more information regarding costs and registration fees visit

http://copyright.gov.in/frmFeeDetailsShow.aspx [7]

Keep in mind that in order to obtain a copyright registration, you will need copies of your source code and object code in executable format. In India, the copyright application process allows you to designate various portions of the source code as trade secrets. Some details of which can be observed below.

*Copyright Registration of Software without Trade Secrets

  1. For published or unpublished computer programs more than 50 pages in length, you are required to send one copy of identifying portions of the program (first 25 and last 25 pages of source code) reproduced in a form visually perceptible without the aid of a device, either on paper or in microform, accompanied by the page or equivalent medium containing the copyright notice.
  2. For a program less than 50 pages in length, send a visually perceptible copy of the entire source code.
  3. When an applicant is unable or unwilling to deposit source code, they must state in writing that the work as deposited in object code contains copyrightable authorship. The Copyright Office will then register the work under its ‘rule of doubt’ since the existence of copyrightable authorship has not been determined.
  4. When a computer program is embodied in a CD-ROM, the deposit should also include a printout of the first 25 and last 25 pages of source code for the program.

*Copyright Registration of Software with Trade Secrets

  1. First 25 and last 25 pages of source code with portions containing trade secrets blocked out; or
  2. First 10 and last 10 pages of source code alone, with no blocked-out portions; or
  3. First 25 and last 25 pages of object code plus any 10 or more consecutive pages of source code with no blocked-out portions; or
  4. For programs 50 pages or less in length, the entire source code with trade secret portions blocked out.

When Portions of Code are Blocked out, make sure that:

The blocked-out portions must be proportionately less than the material remaining, and the visible portion must represent a substantial amount of original code. [8]

How long will Source Code Copyright last?

The copyright registration is effective on the date the Copyright Office received all required components in acceptable form, regardless of how long it takes to process the application and mail the certificate of registration. The length of processing time will depend on the amount and complexity of the material being reviewed.

For the purposes of copyright duration, the India Copyright Act 2014 indicates that a program which is created to integrate a variety of components of a multimedia product is to be protected as a computer program (source code and object code) on the same basis as literary work. As such, the term of copyright is the lifetime of the creator + 60 years. [4]

Where exactly do I apply to Copyright Source Code?

You will be able to apply for copyright registration in person, by post, or online. If you are looking to hand the application in person, the Registrar of Copyrights at the Copyright Office located at:

Boudhik Sampada Bhawan,

Plot No. 32, Sector 114, Dwarka,

New Delhi – 110078

You can also send your application via post to the same address or register online through E-filing. For inquiries or to set up an appointment call 011-28032496 or 08929474194.

References

[1] M. Variyar, “The Economic Times India,” 26 October 2018. [Online]. Available: https://economictimes.indiatimes.com/small-biz/startups/newsbuzz/india-added-1200-tech-startups-in-2018-nasscom/articleshow/66371786.cms.
[2] “Ministry of Electronics and Information Techonology,” Government of India, 10 9 2015. [Online]. Available: http://meity.gov.in/content/copyright.
[3] “India Filings,” [Online]. Available: https://www.indiafilings.com/learn/international-copyright-registration/.
[4] V. P. Dalmia, “Mondaq,” India, 14 12 2017. [Online]. Available: http://www.mondaq.com/india/x/655852/Copyright/Copyright+Law+In+India+Everything+You+Must+Know.
[5] “ITlaw.in,” [Online]. Available: http://www.itlaw.in/cyber-crime-in-india/software-piracy/.
[6] “copyright.gov.in,” THE COPYRIGHT RULES 2013 , [Online]. Available: http://copyright.gov.in/Documents/Copyright_Rules_2013_and_Forms.pdf.
[7] “copyright.gov.in,” Fee Details , 2018. [Online]. Available: http://copyright.gov.in/frmFeeDetailsShow.aspx.
[8] B. Charan, “Legal Services India,” Indian Copyright Software , [Online]. Available: http://www.legalservicesindia.com/article/855/Indian-Copyright-Software.html.

 

 

 

 

 

 

 

 

 



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