Copyright and Cyberspace

June 8, 2011, by | Start Discussion

Copyright in cyberspace primarily exists at two levels

  • Computer Source code.
  • Computer database.
Copyright
 
[This concept is explained using simple fictional illustrations involving Revati, who has created easyPDF, a computer program for converting documents into PDF (Portable Document Format)] 
According to Section 14 of the Copyright Act, "Copyright" means the exclusive right to do (or authorize the doing of) any of the following:- 
 
1. To reproduce a computer programme in any material form including the storing of it in any medium by electronic means,
 
Illustration 1
Revati has the exclusive right to reproduce the easyPDF program on CD, DVD and other storage media.
 
Illustration 2
Revati has the exclusive right to upload the easyPDF program onto her website.
 
2. To issue copies of the computer programme to the public.
 
Illustration 1
Revati has the exclusive right to provide the easyPDF program along with computer magazines so that the general public can use the software.
Illustration 2
Revati has the exclusive right to upload the easyPDF program onto her website so that people around the world can download it.
 
3. To perform the computer programme in public, or communicate it to the public.
 
Illustration 1
Revati has the exclusive right to give a public demonstration of the workings of the easyPDF program. 
 
4. To make any cinematograph film or sound recording in respect of the computer programme.
 
Illustration 1
Revati has the exclusive right to make a promotional film depicting the working of the easyPDF program.
 
Illustration 2
Revati has the exclusive right to make a promotional sound recording depicting the working of the easyPDF program.
 
5. To make any translation of the computer programme
 
Illustration
Currently the easyPDF program has all the menu commands and help files in English. Revati has the exclusive right to make a version of the easyPDF program that has the menu commands and help files in Hindi.
 
 6. To make any adaptation of the work.
 
7. To do, in relation to a translation or an adaptation of the computer programme, any of the acts specified above. 
 
8. To sell, give on hire, offer for sale, or offer for hire, any copy of the computer programme.
 
Illustration 1
Revati has the exclusive right to offer the easyPDF program for sale.
 
Illustration 2
Revati has the exclusive right to act as an Application Service Provider for the easyPDF program e.g. a user will be charged a small fee for every document that he converts to PDF using the easyPDF program.
 
Term of Copyright
 
Illustration 1
Ketaki creates a computer program in 2008. She dies on 12th March, 2010. The copyright in the computer program will subsist for 60 years from 1st January 2011.
 
Illustration 2
Ketaki and Rajan together create a computer program in 2008. Ketaki dies on 12th March, 2010 while Rajan dies on 13th July, 2014. The copyright in the computer program will subsist till 60 years from 1st January 2015. 
 
Copyright Infringement
 
The copyright in a computer program is deemed to be infringed when any person without a license or in contravention of the conditions of a license:-
 
  • Does anything, the exclusive right of which is conferred upon the owner of the copyright by the Copyright Act, or
  • Commercially permits any place to be used for the communication of infringing work to the public.
  • The following are also deemed to be infringement:-
  • Distributing, selling or hiring out infringing copies,
  • Exhibiting infringing copies in public,
  • Importing infringing copies into India. 
There are several acts that are not deemed to be infringement of copyright.
 
These are explained using the following simple illustrations given below. In these illustrations, I have used the fictional illustration of Revati who has created the easyPDF software. Sameer has purchased a CD containing the easyPDF software.
 
Illustration 1
Sameer can make a backup copy of the easyPDF software on another CD so that in case the original CD gets damaged, he can reinstall from the CD ROM.
 
Punishment for copyright infringement
 
Knowingly using the infringing copy of a computer program on a computer is punishable with:-
  • Imprisonment for a term between 7 days and 3 years and
  • Fine between Rs. 1 lakh and Rs. 2 lakh.
 
In case the infringement has not been made for commercial gain, the Court may impose no imprisonment and may impose a fine up to Rs 50,000.
 
The offence can be tried by a magistrate not below the rank of a Metropolitan Magistrate or a Judicial Magistrate First Class.
 
In case of offences by companies, persons in charge of the company are also liable unless they prove that the offence was committed:-
 
  • Without their knowledge or
  • Despite their due diligence to prevent it.
 
Understanding Computer Software
 
According to Section 2(ffc) of the Copyright Act, a computer program is 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 particular results”.
 
The essential elements of a computer program are:-
It is a set of instructions expressed in:-
  • Words,
  • Codes,
  • Schemes or
  • In any other form, including a machine readable medium.
 
Which is capable of causing a computer to:-
  • Perform a particular task or
  • Achieve a particular result.
 
Computer software is “computer program” within the meaning of the Copyright Act. Computer programs are included in the definition of literary work under the Copyright Act.
 
Computer Database & Law
 
According to Section 43 of the Information Technology Act (IT Act), a "Computer data base" means,
 
a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalized manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network.
 
Essential elements of “computer database”:-
 
A. Computer database is a representation of
 
  • Information,
  • Knowledge,
  • Facts,
  • Concepts or
  • Instructions
B. This representation can be in
 
  • Text,
  • Image,
  • Audio,
  • Video
 
C. This representation must be such as
 
  • Being prepared in a formalized manner or
  • has been prepared in a formalized manner or
  • has been produced by a computer, computer system or computer Network
 
D. Computer database is intended for use in a computer, computer system or computer network. 
 
Illustration 1
Sameer has prepared an online database of all Hindi movies. This database is searchable by movie name, director name, lead actor etc.
 
Illustration 2
The Noodle Ltd website contains several password protected web-pages. The usernames and passwords of all authorized users are contained in a Microsoft Access database.
 
Illustration 3
Noodle Telecom Services Ltd creates a CD ROM containing the names and phone numbers of all their subscribers.
 
Illustration 4
Noodle School has an automated system for student administration. This system is powered by a database that contains detailed student information.
One table of this database is titled “basic_info” and contains the following categories of information

Roll No. Name Adress Phone Email
         

Another table is titled “student_marks” and contains the following categories of information:-
 

Roll No. Test 1 Test 2 Test 3 Final
         

 
Then a student’s report card is to be prepared, the system automatically takes the marks from the “student_marks” table and the name and contact information from the “basic_details” table. It then collates the information and prepares the final report card.
 
Illustration 5
Noodle Law Firm has prepared a computerized database of all their client companies along with the relevant contact persons.
 
An interesting element of computer databases is that copyright can exist in two levels.
 
  • Firstly, the information contained in the database may be the subject of copyright 

                  E.g. A list of computer vulnerabilities and the relevant security measures.

  • Secondly, the actual representation of this information may be the subject of copyright protection 

                 E.g. the above mentioned information in a searchable online database.

Diljeet Titus case
  • Diljeet Titus vs Alfred A. Adebare and Ors.

                        130(2006) DLT330, 2006(32) PTC609 (Del)

 
This case involved two counter suits filed by a group of legal professionals. Diljeet Titus (the plaintiff) is the proprietor of Titus and Co.
 
 
His colleagues Alfred Adebare, Seema Jhingan, Alishan Naqvee and Dimpy Mohanty (hereinafter referred to as defendants) had left Titus and Co.
 
While leaving Titus and Co, the defendants had taken with them computer data (from the computers of Titus and Co) relating to:-
 
1. proprietary drafts of precedents, agreements, forms, presentation, petitions, confidential documents, legal opinions, legal action plans, and
 
2. Computerized database containing client information, proprietary client list, proprietary potential client list and other related information.
 
Titus claimed to have copyright over the above. The defendants claimed to be the owners of the copyright in what they had created. It was their contention that the creation was independent and was created by advising and counseling the clients.
 
The defendants sought a decree of declaration that they were the owners of the copyright in what they had created and sought a permanent injunction against Mr. Titus and his firm from using and parting with the same.
The question was whether there was exclusive right of any of the parties in what they had created or it was a joint right.
 

Conclusion

The Court held that Titus and Co. was a sole proprietorship concern and not a partnership. It held that the defendants did not have a right over the subject matter of the suit.


Sagar is a Law graduate. He is Head at Asian School of Cyber Laws(Maharashtra). He specializes in Cyber Law, Intellectual Property Law and Corporate Law. He teaches at numerous educational institutions across India.

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