Professional Documents
Culture Documents
Thesis submitted to Berhampur University in partial fulfilment of the requirements for the
award of the degree of Doctor of Philosophy in the faculty of Management
By
S. Venkitachalam M.com, LL.B, ACS
2009
Ph.D Reg. no: 322/07
Declaration
me under the guidance of Dr. Prasantha Kumar Padhy, Ph.D, Professor and
Studies, Berhampur University. I also declare that no part of this thesis has
been presented before any degree, diploma or any other title of any other
university.
S. Venkitachalam
Berhampur
Dr. Prasantha Kumar Padhy, Ph.D,
Professor and Head of the Department of Management,
Berhampur University, Berhampur,
Orissa – 760007
Certificate
Berhampur
Dr. Bhagirathi Panigrahi, Ph.D
Professor and Head of the Department of Law,
Berhampur University, Berhampur,
Orissa – 760007
Certificate
Berhampur
Acknowledgements
This work was carried out under the supervision and inspiring guidance of
Dr.Prasantha Kumar Padhy, Ph.D, Professor and Head of the Tepar|ment of
Management, Berhampur Universitq and Dr. Bhagirathi Panigrahi, Ph.D, Head
of the Department of Post Graduate Megal Studies, Berhampur University. But for
their scholarly guidance and encouragem%nt, this Study would not have been
compm%ted on time. During my research tenure, I have never felt wanting for
timely advice, which had helped me a lot in boosting the momentum of my work. I
take this opportun)ty to place on record my gratitude and indebtedness to both of
them for their valuable guidance, scholarly interest, and singular attention shown
throughout this study.
I am very thankful to Dr. V. L. Mony, Ph.D, Deputy Director (IPR), National Law
University, Jodhpur, Rajasthan, who had encouraged me for the completion of this
thesis.
British Leyland Motor Corp Ltd. Vs. Armstron Patents Co. Ltd 2WLR
(1986) 400
Delhi High Court (Microsoft Corporation vs. Ms. K. Mayuri and Ors.
2007 (35) PTC 415 (Del))
Express Newspaper Inc. Vs. Liverpool Daily Post & Echo Plc 1WLR
(1985) 1089
Exxon Corp Vs. Exxon Insurance Consultants International Ltd ALL ER
(1981) (3), 241
G.A. Cramp & Sons Ltd Vs. Frank Smythson Ltd AC (1944) 329
Grama phone Co. of India Ltd. Vs.Mars Recording Pvt. Ltd & Another
KLT (1998) SC, 282
Ibcos Computer Ltd Vs. Barclays Mercantile Highland Finance Ltd FSR
(1994) 275
Indian Performing Right Society Ltd. Vs. Eastern India Motion Picture
Association and others AIR (1977) SC 1443
Ladbroke (Football) Ltd. Vs. William Hill (Football) Ltd 1 All ER (1964)
465
Macmillan & Co. Ltd Vs. K&J Cooper 40 TLR (1923) 186
Microsoft Corporation vs. Ms. K. Mayuri and Others 35 PTC (2007)
DEL,415
Pizza Hut INC. Vs. Pizza Hut (India) Pvt. Ltd SCC (2) (1997) 2
Power Control Appliance and others Vs. Sumeet Machines Pvt. Ltd. With
Sumeet Research and Holdings Vs. Sumeet Machines & others SCC
(1994) (2) 448
Salvage Association Vs. CAP Financial Services Ltd FSR (1995) 654
Saphena Computing Ltd Vs. Allied Collection Agencies Ltd FSR (1995)
616
St.Albans City & District Council Vs. International Computers Ltd FSR
(1997) 251
Total Information Processing Systems Ltd Vs. Daman Ltd FSR (1992)
171
Vicco Laboratories and Another Vs. Art Commercial Advertising Pvt. Ltd
and others SCC (2001)2, 180
West Rand Central Gold Mining Co. Vs. The King (1905) (2) KB 391
LIST OF ABBREVIATIONS
CD - Compact Disc
IC - Industrial Circuits
ID - Industrial Design
IP - Intellectual Property
IT - Information Technology
Pub - Publication
R&D - Research and Development
UN - United Nations
Acknowledgements i
List of Tables vi
CHAPTERS
CHAPTER I.............................................................................................................19
INTRODUCTION.....................................................................................................19
1.3 Definition of Intellectual Property Rights (IPR) 24
Another Significant Analysis of IPR, in its Jurisprudential angle is made by economic incentive theory.
This Theory provides that “IPR is a protection given for efficient economic allocation of resources. . .46
IN the book Data Protection Law , An effective analysis of the Data Protection Act, 1998 along with
the principles of Data Processing and the related enforcement and practical aspect relating to software
industry is highlighted by the author. 47
In the book, Networks Communications, A Concise Guide to Compliance with the Law, the author
has considered matters relating to Network communications, its liabilities, misuse, liabilities of
employer and work man including its evidentiary aspects, applicable to the software companies. This
book analyses the IPR aspects of the networking, as a function. 49
In the book Patent Law by P. Narayanan , the author has dealt with Patent protection in general
Trade secret, Rights of publicity of celebrities, Computer related inventions, Plants and animals,
Patenting biotechnological products and DNA sequences. This book is useful guide for the study of
IPR. 51
1.21 Chapterisation 56
CHAPTER - II..........................................................................................................72
3.2.1 PATENT.......................................................................................................127
3.3.1 COPYRIGHT................................................................................................140
Bibliography 231
Chapter I
Introduction
1.1 Introduction
The modern business, has undergone sweeping changes over the last
products and bring them to the market first or the early birds are in a
winning situation; shorter the time better are the chances of success.
Nevertheless, this leaves the market open for those who are capable of
the investments made. IPR has also become important for the
that IPR is concerned with the rights which are not tangible.
competitive world the subject of IPR demands much more and careful
the country.
Mankind is always interested in promoting innovation and progress.
Society will not get benefited with newer and better products without
proper R&D and the resultant products coming out of it. R&D costs of
modern business entities run into millions of dollars, and they expect
1
U.S. Constitution
years a large number of intellectual property rights will be generated
• scientific discoveries;
• industrial designs;
2
http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.html#intro
world. The property is not in those copies but in the information or
1.6 Patents
A patent is one of those rights which come under the general heading
process, and must be registered in each country in which they wish that
invention or process to be protected by law. Once registered, a person
Or
granted by the government to the applicant, and gives him the right for
invention without permission. In return for this right, the applicant must
granted, the applicant becomes the owner of the patent. Like any other
of products and systems for the mutual benefit of both user and
4
http://www.indianindustry.com/intellectual-property-rights/
1.8 Trademarks
of one trader from those of another. These are used to identify the
source of goods or services. It acts like a badge and provides the holder
with the exclusive right to use the mark for the holder's goods and
services and prevent other persons or businesses from using the same
mark for their own goods and services as a means of benefiting from
The Trade Marks Act, 1999 has introduced the registration of service
enterprise from those of others, while service marks fulfil the same
6
http://www.nolo.com/definition.cfm/term/9D807BC5-9818-4A55-81BF734117266162
7
http://www.manishmb.com/understandingtrademarks.html
1.10 Layout-design of integrated circuits
as :
8
http://www.lexorbis.com/layout-design.html
1.12 Copyright
technical problems. These new solutions are ideas, and are protected as
such; protection of inventions under patent law does not require that the
musical notes, colours and shapes. So copyright law protects the owner
of property rights against those who copy or otherwise take and use the
works, it follows that the legal protection provided to each also differs.
fact that the invention is protected must also be made known to the
Since the legal protection of literary and artistic works under copyright,
by contrast, prevents only unauthorized use of the expressions of ideas,
the duration of protection can be much longer than in the case of the
protection of ideas themselves, without damage to the public interest.
Also, the law can be - and in most countries is - simply declaratory, i.e.,
the law may state that the author of an original work has the right to
prevent other persons from copying or otherwise using his work. So
created work is considered and protected as soon as it exists, and a
public register of copyright protected works is not necessary.
and that inventors and authors are thus recognized and rewarded for
their ingenuity.
for its Member States to create and harmonize rules and practices to
during the last decade, WIPO plays a key role in helping these new
related rights:
service provider for disputes arising out of the abusive registration and
Although the term is in wide use, some critics reject the term
systematically distorts and confuses these issues, and its use was and is
promoted by those who gain from this confusion. He claims that the
term operates as a catch-all to lump together disparate laws [which]
have different rules, and raise different public policy issues.10 These
term.
detriment of the masses,11 and argue that the public interest is harmed
property to expand, both in duration and in scope. The trend has been
protection. Patents have been granted for living organisms, and colours
have written.
12
the U.S. Copyright Term Extension Act, Pub.L. 105-298.
13
Mark Helprin, Op-ed: A Great Idea Lives Forever. Shouldn’t Its Copyright? The New York Times, May 20,
2007.
14
For example, AstraZeneca holds a registered trademark to the color purple, as used in pill capsules.
AstraZeneca, Nexium: Legal. Accessed 2008.12.18.
15
Martin G, Sorenson C and Faunce TA. Balancing intellectual monopoly privileges and the need for
essential medicines Globalization and Health 2007, 3:4doi:10.1186/1744-8603-3-4.
1.15 Significance of the Problem
they will face serious consequences in both monetary and legal aspects.
sector in India.
organisations.
1.17 Hypothesis
orientation and policy are to be evolved in the new IPR regime with
shift in its strategies and move towards, developing and bringing out
products with higher value addition. In the process, more and more
Rights Theory16.
16
Natural Rights Theory, John Locke
Another significant analysis is the theory of consideration which
Protection Act, 1998 along with the principles of Data Processing and
IPR protection is IPR licensing. The IPR licensing protects the new and
In the book Law for IT Professionals 19, the author has analysed the
In the Book E-mail, the Internet and the Law, Essential Knowledge
19
Paul Brennan, Law for IT Profesionals, First Edition, Universl Publishing Co. 2007
20
Tim Kevan and Paul McGrath, First Edition, Universl Publishing Co. 2007
evidences, virtual liabilities, online contracts, which is very significant
Compliance with the Law, 21 the author has considered matters relating
the software companies. This book analyses the IPR aspects of the
networking, as a function.
In the book Legal Protection of Software a handbook 22, the author has
21
Stephen Mason, Networks Communications, First Edition, Universal Publishing Co. 2007
22
Richard Morgan and Kit Burden, Legal Protection of Software: A Handbook, First Edition, Universal
Publishing Co. 2007
23
In the book, The Copy Right Act, 1957 the authors have very
This book is an authoritative book on the copy right law in India, and
Software Industries.
the author has analysed the Trade mark, patent and copyright laws in
India relevant cases and decisions were also addressed in this book,
23
Dr.R.G.Chaturvedi and Sanjay Upadhyay, T.R.Srinivasa Iyengar’s The Copyright Act, 1957, Fifth Edition,
Butterworths, 1987
24
Salil K.Roy Chowdhury & H.K. Saharay, Law of Trade Mark, Copyright, Patents and Designs, First
Edition, Kamal Law House 1996
In the book Patent Law by P. Narayanan 25, the author has dealt with
development of the law and focused the problems that are usually faced
copyright conventions and so on. The author with his erudition has also
Reports (FSR).
27
In the book Law of Trade Marks and Passing off by P.Narayanan,
Act 1994 of the U.K. meeting the needs of judicial interpretation of the
Act of 1999 which came into force only on 15th September 2003.
27 P. Narayanan,
Law of Trade Marks and Passing off, Sixth Edition, Easteren Law House, 2004
In the book Law of Trade Marks& Geographical Indications- Law,
all the provisions in a much detail as possible , giving the relevant case
laws in India, U.K and the EEC, besides indicating the practice of the
Registry at the appropriate places. Since the new law is largely based
on the reform process in U.K, the White Paper on trade Marks Law
28
K.C. Kailasam & Ramu Vedaraman, Law of Trade Marks & Geographical Indications – Law. Practice &
Procedure, Second Edition, Wadhwa, 2005
29
P.K. Mittal & O.P. Chadha, Supreme Court on Trade Marks, Copyrights, Patents & Designs (1950 to
2005), Updated Edition, Om Law Book House 2006,
Court of India during the period from 1950 to 2005 on Trade Mark
30
In the book Intellectual Property Rights, the author offers the most
30
Dr.J.K. Das, Intellectual Property Rights, First Edition, Kamala Law House, 2008
managerial case studies and court orders for evolving a new IPR
management policy.
b) Time Constraint: The time allotted for this research is too short due
d) Accessibility Constraint.
1.21 Chapterisation
Importance of IPR is
IPR issues that were brought before the judicial authorities along
sector of India.
1.21.6 Sixth chapter: Conclusion deals with conclusions and
Chapter - II
2.1 Introduction
This chapter makes an attempt to briefly outline the historical evolution
of IPR systems from its early period, from the first codification of a
the history of IP laws till modern times. Man has been gifted with
wonderful thing called Brain and the Earth is full of physical and
improved upon by the human brain. By using his brain and mind, and
also by utilising such gifts endowed by nature, man started creating his
own world. The same man has also been gifted with imagination and
creativity. With this he has been creating immense number and kinds of
articles or products for his needs, comfort and convenience and as days
given to a public domain. These were the common properties and could
The principles of IP notions have been evolved from pre historic times,
Greece, were not known to have had any patent-like institutions for
technical inventions, nor did the Roman Empire (Kaufer, 1989, p.1).32
enterprises.
from the Vedic Mantras wherein the rishis were the seers of the
different Mantras, like rishi Viswamitra, who is the seer of the most
rishi before starting chanting of a mantra, and thus even in those days
31
These symbols correspond to trademarks, but could also be seen as related to designs and copyrights since
they involved visual expressions. Copyright of written material requires a written language, of course.
32
Roman property law was strongly centered around physical property and physical possession.
there was a marked identification of findings, even though they made
made the finding available for the welfare of the whole mankind.
pertinent to note the use of trademarks and patent like systems for food
chemistry in the Greek colony Sybaris on the East coast of the Italian
as under:-
33
Athenaeus in “Deipnosophistae”, book XII, p. 521 tells the following:
“The Sybarites”, Phylarchus says, “after drifting into luxury passed a law that….if any caterer or cook
invented a dish of his own which was especially choice, it was his privilege that no one else but the inventor
himself should adopt the use of it before the lapse of a year, in order that the first man to invent a dish might
possess the right of manufacture during that period, so as to encourage others to excel in eager competition
with similar inventions.” (As cited in Charles Burton Gulick's translation, Vol. I-VII, London/New York
1927-41, in Vol. V, p. 349).
34
Background paper to the Concluding Roundtable Discussion on IPR at the DRUID Summer Conference
2003 on CREATING, SHARING AND TRANSFERRING KNOWLEDGE.
The role of Geography, Institutions and Organizations. Copenhagen June 12-14, 2003
Innovation and Intellectual Property by Ove Granstrand
Year(s) Event
3,200 BC Potter marks found on fired clay pots, including jars buried in
seals bearing such marks were used from about this time
35
Copyright Theft, John Gurnsey, Aldershot 1995.
100 BC Trademarks used in Rome on an everyday basis to mark
medicine.
40 – 100 AD the roman poet Marcus Valerius Martialis were so upset when
“plagium” (plagiarism). 36
100 AD An acknowledgement of intellectual work and effort in the
36
Lärobok i Immaterialrätt (in Swedish), p. 25, Levin, M,Koktvedgaard, M, Norstedts Juridik,
2000.
creation of a new thing out of someone else’s materials. If
37
Textbook on Roman Law,Andrew Borkowski LLB, Blackstone Press Ltd, 1994.
guild the secret for preparing new and novel medicines.
1323 Johannes Teuthonicus is granted a patent-like privilege by the
38
Lärobok i Immaterialrätt (in Swedish), p. 26, Levin, M,Koktvedgaard, M, Norstedts Juridik,
2000.
1450 Johann Gutenberg develops the printing press.
1451 The newly acquired ease of copying written materials creates
300 ducats. 40
1584 The first judicial recogniction of trademarks stems from the
goods.41
1624 The first legislation of patent law that to a large extent
39
Urheberrecht, Kohler, Stuttgart 1907,pp.34.
40
Patentskyddets omfattning, Godenhielm (in Swedish), Helsingfors, 1994, pp2.
resembles our present, were the Statute of Monopolies. 42
1709The first legislation of copyright law that to a large extent resembles ours
were the Statute of St Anne. This legislation were influenced from older
common law concepts that were formed during the 15th century.1712-
42
Lärobok i Immaterialrätt (in Swedish), p. 26, Levin, M,Koktvedgaard, M, Norstedts Juridik,
2000.
43
Lärobok i Immaterialrätt (in Swedish), p. 270, Levin, M,Koktvedgaard, M, Norstedts Juridik,
2000.
44
The business of enlightenment: a publishing history of the Encyclopédie,1775 – 1800. Cambridge
Mass.1979.2000.
The same year the Copyright Act was also enacted by the
U.S. Congress.
Ages, economic notions about IPR also developed. The need for
large.
and patent privileges which made the patent particularly attractive. The
45
U.S Patent Report
privileges of the patent holders were that they were protected from
competition.
marks and designs. This description is used in the Paris Convention for
conventions and treaties and a brief outline and their importance in the
46
Paris, France on 20 March 1883
The Treaty was revised at various countries such as Brussels47 Belgium.
September 28, 1979. The original Paris Treaty from 1883 has
undergone revision several times and today stands in the form of its
the Convention. This convention gave the inventors a rational base for
property as their own nationals. This rule guarantees not only that
. TRIPS Agreement
52
The convention provided a base for patenting an invention in more
than one country. The Paris Convention has provided the frame work
Switzerland in 1886.
the Patent form of IPR. The Berne convention was the masterminded
Berne Union) in the same way it recognises the copyright of its own
created.
1979. The UK signed in 1887 but did not implement large parts of it
until 100 years later with the passage of the Copyright, Designs and
copyright notice, the United States initially did not become party to the
into force and the United States became a party to the Berne
obsolete.
The convention brought into vogue a system of equal treatment by
could be copyright there, but could be copied and sold by anyone in the
copyright laws.
work is fixed, that is, written or recorded on some physical medium, its
derivative works, unless and until the author explicitly disclaims them
Convention foreign authors are also given the same rights and
Convention. Since almost all nations are members of the World Trade
As mentioned above, the United States initially did not become a party
Even though some states disagreed with some of the aspects of the
Berne Convention, and did not join the Berne Convention, they wished
to have some from of IPR protection and for the benefit of these states,
54
UCC Convention, Geneva 1952
the UCC was created and developed by United Nations Educational,
Union, These states were of the opinion that the strong copyright
states also became party to the UCC, so that their copyrights would
protection for a single term based on the life of the author, and did not
require registration or the inclusion of a copyright notice for copyright
to exist. Due to these major differences the USA did not become a
party to the Berne Convention. The UCC permits those states which
had a system of protection similar to the United States for fixed terms
at the time of signature to retain them. In the course of time, the United
protection in India also as per the terms and conditions laid down in the
Indian Copyright law. Since almost all countries are either members or
55
WIPO Convention on 26 Apr 1970
property throughout the world. WIPO became a specialized agency of
the 1960s and 1970s, developing nations were able to block expansions
to intellectual property treaties, such as universal pharmaceutical
In the 1980s, this led to the United States and other developed countries
started setting out of WIPO into the General Agreement on Tariffs and
Trade, which later evolved into the World Trade Organization, where
the North had greater control of the agenda. This strategy paid
Organization (WTO).
Agreement on Tariffs and Trade (GATT) in 1994. Its inclusion was the
Specifically, TRIPS contains the stipulation that that nations' laws must
system for the first time and remains the most comprehensive
international agreement on intellectual property to date. In 2001,
WTO statement that clarifies the scope of TRIPS, stating for example
that TRIPS can and should be interpreted in light of the goal to promote
laws. States like Russia and China that were very unlikely to join
settlement mechanism.
the Berne Convention and many of its trademark and patent provisions
Industrial Property.
Thus we can see that in the current scenario, TRIPS is the main
controller of all IPR in nations, which are entering the WTO for
Even though the obligations under TRIPS apply equally to all member
been argued that the TRIPS standard of requiring all countries to create
countries.
crucial issue. There has been a demand worldwide for the protection of
WIPO. These treaties are: WIPO Copyright Treaty (WCT) and the
rapidly around the world over the years, the scope and the feasibility of
enforcement of that protection continue to vary significantly in
different countries. The use of the U.S. Trade Act56 has resulted in
56
USA Special 301 Provisions, 1988
2.9 Indian Scenario of IPR
users about the lawful use of software. NASSCOM has also been
required changes in the IPR laws, keeping in line with WIPO and other
The major statutes that cover IT sector in India are Copyrights Act,
India has one of the most modern copyright protection laws in the
world. Major development in the area of copyright during 1999 was the
with the provisions of the TRIPS. The provisions of this Act are a
These additions in the Act have widened the scope of protection under
the Copyright Act, 1957. The provisions contained in the WCT are
well reflected here, though India is not a signatory to the WCT.
(2) To issue copies of the work to the public not being copies already in
circulation;
(3) To perform the work in public, or communicate it to the public;
(8) To sell or give on commercial rental or offer for sale or for commercial
rental any copy of the computer program.
However, commercial renting does not apply to computer programs
where the program itself is not the essential object of the rental.
for a term of at least seven days and can be extended to three years and
In compliance with the provisions of the TRIPS, the Act has clarified
software:
order to utilize the program for the purpose for which it was
supplied or to make back-up copies purely as a temporary
utilize the computer program for the purpose for which it was
supplied.
use.
The Patents Act, 1970 states that a computer program per se other than
software in India is found in the Copyrights Act, 1957. There are very
as amended to date, are that the invention must be new, useful and non-
obvious. Invention means a new product or process involving inventive
detail, usually to try to make a new device or program that does the
and innovation are the very basis for modern day development.
There is a most urgent need for strong regime for setting up the
development and trade in, intellectual assets; and a stable
in foreign markets.
digital form. These have become the top IPR issues, and
property.
mark represents the goodwill that has been built into the
57
Article 7 of TRIPS
creators to protection, and the rights of users of
new knowledge and the products of new knowledge, with the public
cost of the consumer or public at large. When the public is poor, this
may conflict with basic human rights, for example, the right to life. An
IP right is best when it stands the test as one of the means by which
nations and societies can benefit out of such rights to increase and
IP rights are granted by states for limited times, at least in the case of
economic and commercial rights, since the IPRs are held more often by
compared to taxation. It is known fact that rarely anybody says that that
the more taxation there is, the better. However if the more taxation
delivers public services that society values more than the direct and
2.14 Conclusion
function.
Chapter III
Components of IPR
3.1 Introduction
mind., essentially come across the life of every individual, and every
time, matters such as the design of a house, the different materials and
paintings, photographs, wall clock and what not, to name a few. Other
articles of daily use such as pens, books, the newspapers ,tissue papers,
shoes etc ; the things that are worn by him like Jeans T-shirts , trousers,
hats ties , shoes etc ; the items of conveyance like cycles, cars, bikes
etc. There is no end to this list. Almost all the things that are owned
Great minds have spent his time, money and energy to invent and
categories:-
problem.
Patent.
3.2.1 Patent
or locally produced.
A patent is one of those rights which come under
or mortgaged.
After the patent period the invention is available to all for commercial
3.2.2 Trade-mark
The provision re
is as follows:
common law
Most of the products we use in daily life are protected by Trade-mark
drawings, images, symbols, and even sounds. The trade marks offer
protection to the owner rights. They also enhance the confidence of the
quality and also reflect the goodwill of the owner attached to the
particular brand.
3.2.3 Design
60
Article 25 of TRIPS Agreement
independently created industrial designs that are new
protected. One has to register this design against limitation and un-
61
Article 22 of the TRIPS Agreement
Geographical Indication in relation to goods,
Traditional craft items like hand- woven articles like carpets, cotton bed
and innovations62 are the some of the latest entries in the field of
This right provides economic right to the creator that is the financial
63
Article 9 of the TRIPS Agreement
This is an exclusive legal right granted by a
Since the study is focussed on the IPR in relation to the software sector,
producers and consumers of software, face the issue how to ensure that
field software becomes junk and obsolete and not catering to the
different versions have made the DOS-OS almost extinct. This leads us
to think about the enormous costs incurred by Microsoft in bringing
advanced version, so that the features are more and more user-friendly
by engineers who expect to make their living from their work. Even in
the case of well known large scale open source projects, such as the
Linux, Eclipse, and the GNU project, most major work is done by
companies, such as IBM, Red Hat, and AdaCore, that pay people to
after purchase, the consumer is free to fully enjoy them without any
restrictions. He can use the shoe as he likes, an lend the same, sell
them, and modify its shape, and can create a new design out of it. In
short you are free to do anything with that once you have purchased the
does not in any way restrict the right of consumers. By doing so the
have to face any legal action on account of his meddling with the
product as such. The consumer can even resell the modified equipment;
company, from which the person purchased the product protects his
patent, but does not affect the rights of a consumer not directly affect
you as a consumer.
the software. Usually, license of the software restricts the use of the
use of license keys or similar devices, and in the worst case when
Here we have to make one more distinction. The product makers are
concerned with only one aspect, ie to provide the consumer with the
best product and to derive benefits for his effort in innovating and
more concerned with the use of the software by the consumer, because
machinery.
Unlike this, the software manufacturer has two important matters to
consider.
because the product can be easily copied and used by other consumers
losses then. They are concerned with protecting their investment, which
is very high for the development of a single software. This leads them
the consumer what they want, and attach to the software, licenses that
software, which is expected to be totally free and with the source code
being available freely, new developers can improvise upon the product
and make them available free further. The question is whether this is
function for IPR in the software industry, it is very vital to consider all
the above factors and the corporate philosophy in IPR protection should
64
Article 10 of TRIPS Agreement
2. Compilations of data or other material, whether in machine
Member shall provide authors and their successors in title the right to
65
Article 11 of TRIPS Agreement
TRIPS is the first international Treaty to explicitly include computer
(1967):
66
Article 39 of TRIPS Agreement
and data submitted to governments or
Civil and criminal actions are provided for in many legislation against
business value. Unlike patents, trade secrets are protected as long as the
code is protected under the trade secret regime and the object code is
protected as a copyright.
programs that are independently coded and deliver the same functional
performance or behaviour as the originator’s own software are not said
to infringe the latter’s rights in his software as this will amount to fair
countries.
was not much intellectual property to protect. Indian companies did not
own the customized intellectual property they might have created since
their work product fell under work for hire standards or ownership was
necessary for the software companies to move up in the value chain and
programming onsite.
and more
products.
This change in the situation will force eth Indian software companies to
have
following :-
customers.
More innovative software are likely to be more attractive to the
customers. This will reduce costs of existing activities and enable new
leading to higher prices and margins for the Indian software. There will
question that arises with respect to IPR is what will be the value of the
vendor will be required to equip the potentially re-usable tools for other
We have in India, one of the most modern copyright protection laws in the
world. During 1999 an amendment was made to the Copyright Act of 1957,
which was a major development in the area of copyright. By this amendment,
the Indian Copyright law has been made fully compatible with the provisions
of the TRIPS. For the first time in India, the Copyright Law clearly explained:
And most importantly the amendments imposed heavy punishment and fines
for infringement of copyright of software.
3.11 Salient Features of Copyright Act relating to Computer program
These additions in the Act have widened the scope of protection under the
Copyright Act, 1957. Copyright, in relation to a computer program means the
exclusive right to do or authorize to do any of the following acts:-
(1) To reproduce the work in any material form including the storing
(2) To issue copies of the work to the public not being copies
67
Section 2(ffb) of The Copyright Act, 1957
68
Section 2(ffc) of The Copyright Act, 1957
69
Section 2(O) of The Copyright Act, 1957
already in circulation;
of the work
The provisions contained in the WCT are well reflected here, though India is
not a signatory to the WCT.
3.12 Requirements for Protection
3.12.1Criteria of Originality
The fundamental protection of literary work in India is that the work must not
be copied from another work, but must originate from the author. Author, in
relation to literary work which is computer generated, is the person who
causes the work to be created. Copyright will subsist in a computer program,
if sufficient effort or skill has been expended to give it a new and original
character. However, a computer program, which does no more than produce
the multiplication tables, or the alphabet, cannot lay claim to copyright
protection. That is because the amount of skill or effort entailed in such an
exercise is too trivial to render the resultant work somtheing which is new and
of original character.
3.12.2First Publication
In compliance with the provisions of the TRIPS, the Act has clarified that the
following acts do not constitute infringement of copyright in software:
A civil and criminal action may be instituted for injunction, actual damages
(including infringer's profits) or statutory damages per infringement etc. With
these amendments, even the criminal penalties have substantially increased.
Section 63 B, stipulates a minimum imprisonment of 7 days which can be
extended up to 3 years and a fine ranging from Rs. 50,000 to 2,00,000.
70
Section 16 of Copyright Act 1957:- No Copyright except as provided in this Act.
71
Section 52 of Copyright Act, 1957:- Certain Acts not to be infringement of Copyright
government agencies are committed to enforce copyright laws and to
eradicate the menace of software piracy.
The term of copyright in published literary work published within the lifetime
of the author is 60 years from the beginning of the calendar year following the
year in which the author dies. In case of anonymous or pseudonymous works,
the duration is 60 years from the calendar year following the year in which
the work is first published. Thus, the minimum term of 25 years stipulated in
the Berne Convention is not applicable in India.
Conclusion
owners and software users are affected by pirated software. This calls for its
stronger legal protection. The primary protection of software in India is found
in the Copyrights Act, 1957. There are very few cases pertaining to protection
of software in India, most of them with Microsoft Corporation as the
aggrieved party. In Microsoft Corporation vs. Ms. K. Mayuri and Ors72, the
wrongdoer who were involved in piracy activities by hard-disk loading, were
awarded punitive and exemplary damages by the court. With the growing
concept of software technology parks and the importance of software in day
to day business activities, more and more companies need protection under
the legal regime to obviate software piracy.
JUDICIAL DECISIONS
4.1 Introduction:
This chapter attempts to analyse the judicial view of the courts regarding the
intellectual property rights. Since the focus of the study is on the IPR in
software industries, efforts are made to analyse the land mark decisions of
various courts relating to copyright law. The important observation of the
courtS gives the trend of the judicial approach in dealing with IPR matters.
The importance of IPR has grown considerably during modern times due to
globalization and opening of the economy. Much of the cases relating to this
is pending before the Apex court in India. However, an attempt is made in
this chapter to analyse to a reasonable extent of judicial view relating to copy
right laws in India.
One of the surest and the safest test to determine whtheer or not there has
been a violation of copyright is to see if the reader, spectator or the viewer
after having read or seen both the works is clearly of the opinion and gets an
unmistakable impression that the subsequent work appears to be a copy of the
original.
Where the theme is the same but is presented and treated differently so that
the subsequent work becomes a completely new work, no question of
violation of copyright arises.
Where however apart from the similarities appearing in the two works there
are also material and broad dissimilarities which negative the intention to
copy the original and the coincidences appearing in the two works are clearly
incidental no infringement of the copyright comes into existence.
The above case related to a case filed by Author of the play Hum Hindustani,
who described the story to a film producer, who used the story in his film.
The question whtheer it amounted to a violation of copyright, was considered
by the court, and hence the above observations.
It is not requisite that the work should be the expression of the original or
inventive thought for copyright and are not concerned with the originality of
ideas, but expressions of thought, and in the case of a literary work, with a
expression of thought in print or writing.
It is true that there is no specific charge under section 52-A. The charge was
under section 51 read with section 63 of the Act. In view of the above finding
and in view of the findings of the courts below that the respondent was
exhibiting the cinematograph films in his Video City for hire or for sale of the
cassettes to the public which do not contain the particulars envisaged under
section 52-A of the Act, the infringement falls under section 51(b)(ii) or
section 52-A of the Act. The former is punishable under section 63 and the
latter is punishable under section 68-A of the Act. In view of the above
76
Halsbury’s Laws of England by Lord Hailsham, Foruth Edition
77
SCC (1996)(8) 282
finding s of the courts below the offences under which the case falls. It would,
therefore, be unnecessary for the prosecution to track on the trace out the
owner of the copyright to come and adduce evidence of infringement of
copyright. The absence thereof does not constitute lac of essential element of
infringement of copyright. If the particulars on video films etc. as mandated
under section 52-A do not find place it would be infringement of copyright. In
our view, on the facts in this case, the offence would fall under section 68-A
of the Act. Accordingly, the conviction of the respondent is altered to one
under section 68-A. There would be no prejudice to the respondent. In view
of the facts and circumstances, we are of the opinion tat instead of imposing a
sentence of imprisonment, sentence of fine of a sum of Rs.10,000 would meet
the ends of justice.
Thus, in the above case the decision was that in the absence of
In Power Control Appliance and others Vs. Sumeet Machines Pvt. Ltd. With
Sumeet Research and Holdings Vs. Sumeet Machines & others78,
M.N.Venkatachaliah C.J and S. Mohan JJ, held that….
78
SCC (1994) (2) 448
The plea of quasi-partnership was never urged in the pleading. As regards
copyright there is no pleas of assignment. The High Court had failed to note
the plea of honest and concurrent user as stated in Section 12(3) of 1958 Act
for securing the concurrent registration is not a valid defence for the
infringement of copyright. For all these reasons we are unable to support the
judgements of the High Court under appeal. We reiterate that on the material
on record as is available at present the denial of injunction, once the
infringement of trade mark, copyright and design is established, cannot be
supported. Pending suit, there will be an injunction in favour of the appellants
(the plaintiffs). All the civil appeals will stand allowed. No cost.
In the land mark decision of Indian Performing Right Society Ltd. Vs. Eastern
India Motion Picture Association and others 79, the concept of performers
right was recognized by the Judiciary for the first time. The learned Justice
V.R.Krishna Iyer, while deciding the above case held that:
That an existing and future right of music composer and lyricist in their
respective ‘works’ as defined in the Act is capable of assignment subject to
the conditions mentioned in Section 18 of the Act, as also in Section 19 of the
Act which requires an assignment to be in writing, signed by the assignor or
by his duly authorized agent.
79
AIR (1977) SC 1443
others 80, Justices O.Chinnappa Reddy, E.S. Venkataramiah &
It is quite true that whatever has received the common consent of civilized
nations must have received the consent of our country and that to which we
have consented along with other nations in general may properly be called
international law, and as such will be acknowledged and applied by municipal
tribunals when legitimate occasion arises for those tribunals to decide
questions to which doctrines of internationals law may be relevant.
In Chhidda Singh Vs. Deputy Director of Consolidation and others 83, Justices
Dr.A.S.Anand and K.Venkataswami, reviewed the petition and held that:
80
AIR (1984) SC 667
81
A special Leave to appeal by the Supreme Court.
82
West Rand Central Gold Mining Co. Vs. The King (1905) (2) KB 391
83
Arb. LR 1 (1998) 532
We view this with concern and deprecate the casual and irresponsible manner
of filing such review petitions which unnecessarily waste the time of the
Court. No existence of an error, much less error apparent on the face of the
order, while dismissing the S.L.P. has even been alleged, let alone
demonstrated in the review petition. The filing of the review petition is an
abuse of the process of this Court. The review petition is, therefore, dismissed
with Rs.5000 as costs, which amount shall be recovered under the Rules.
84
AIR (1988) SC 336
hand, the agreement of sale which is on record shows the adverse
circumstances in which respondent was obliged to part with the incomplete
film. In such circumstances, it is difficult to hold that the sale of the film was
a part of the business of the respondent and the sale in respect of this solitary
transaction would be eligible to tax.
In a similar case85, the Madras High Court to view, which is similar to the
decision in Thirumurugan’s case.
In Pizza Hut INC. Vs. Pizza Hut (India) Pvt. Ltd86, Justices
In Grama phone Co. of India Ltd. Vs.Mars Recording Pvt. Ltd & Another87,
S. Rajendra Babu & Shivaraj V. Patil JJ. Observed :
85
Meiyappen Vs. Deputy Commr. (1967) 20 STC 115
86
SCC (2) (1997) 2
87
KLT (1998) SC, 282
To attract the provisions of Section 52(1)(j) of the Act or to fall outside the
scope of Section 2(m) of the Act it is necessary to plead and establish these
aspects of the case as contended for respondent No.1. Before we examine the
tenability of the contentions raised, we think it necessary that the parties shall
lay factual foundation in the pleadings. If , as contended for respondent No.1,
these aspects bring out the true controversy between the parties and there are
no pleadings to that effect in either form or content, to proceed to grant any
temporary injunction or to decide the matter will be hazardous. Therefore, we
set aside the order made by the High Court affirming the order of the trial
Court granting temporary injunction. It is open to the parties to raise
appropriate pleadings by amendments or otherwise. We also make it clear that
it is open to the parties to seek appropriate interim orders after amendment of
pleadings.
In Vicco Laboratories and Another Vs. Art Commercial Advertising Pvt. Ltd
and others88, S.Rajendra Babu & Y.K. Sabharwal JJ. held that:
petitioners :
had not been established and the suit is itself not dependent on the
interpretation of Section 17 of the Copyright Act, pleadings and issues raised
do not attract the same. On appreciation of evidence, the Courts below have
come to the conclusion that the respondents did not make the said serial for
valuable consideration at the instance of the petitioners and in view of the
findings of fact, the claim of copyright or ownership in respect of the serial
under section 17(b) and (c) would not arise at all.
The High Court in taking into consideration the cognizable nature of the
offence and a severe penalty imposable for the offence of not keeping a letter
of consent obtained from the first owner to the copyright of the film or
assignee thereof, for reaching the conclusion that the State Legislature has no
legislative competence to legislate on the subject of ‘cinema’ has taken into
consideration matters which were not germane to the consideration of the
question of legislative competence of a Legislature on a subject. It is,
however, difficult to think that when a regulatory legislative measure is
enacted by a Legislature on a subject within its competence requiring a person
to obtain a licence for doing certain business concerned with the subject, and
89
SCC, 2 (1995), 462
imposes certain restrictions upon such person to make him conduct the
business concerned for which he is granted the licence, lawfully, it could be
regarded as a legislative provision which is not ancillary to the main subject
of the regulation, when once the subject of regulation is found within the pith
and substance of the concerned Legislature’s competence.
The use of Information Technology has grown an incredible rate. In this space
of a few years, the computers has changed from being somtheing of rarity to a
common office equipment in Softwares and other Industries. The Growth of
Computer Hardware has stimulated and equally impressive developments in
the variety and sophistication of Computer Softwares including Computer
Programs, Files and Data bases.
In Salvage Association Vs. CAP Financial Services Ltd91, it was seen that
Software that has been specially written for a client after feasibility study
proved to be unusable leading to an award of £ 663,000 in damages.
In G.A. Cramp & Sons Ltd Vs. Frank Smythson Ltd 92, provided for a case in
which copyright is denied since there is no skill, effort or Judgement on the
part of the Software Developer.
90
FSR (1997) 251
91
FSR (1995) 654
92
AC (1944) 329
93
ALL ER (1981) (3), 241
In R Vs. Gold 94, it was held that some permanent form of storage can have
copy right irrespective of a fact whtheer they apply password used to gain
access to computer or not. It should be noted that a transient copy of a work
may be an infringing copy notwithstanding its temporary nature.
94
2 WLR (1988) 984
95
FSR (1994) 275
In Noah Vs. Shuba 96, it is provided that for the protection of software identity
of the author of the work is significant. It is the life of the author upon which
copyright is determined.
In Ladbroke (Football) Ltd. Vs. William Hill (Football) Ltd98, Lord Pearce
provided that:
For computer programs, the most important acts are those of copying and
making an adaptation and these will be dealt with comprehensively below.
Issuing copies to the public and rental may also be relevant. However, the
right to issue copies to the public only relates to the first issue of the relevant
copy and will not apply if the copy has already been issued by the copyright
owner or with his consent. For example, a person who buys a copy a sound
recording may resell that copy. The copyright owner’s rights are said to be
exhausted by the first sale. The same will apply to a computer program
providing the licence agreement does not prohibit the assignment of the
licence and transfer of the copy of the program and other items supplied.
96
FSR (1991) 14
97
FSR (1995) 616
98
1 All ER (1964) 465
However, a person acquiring a copy of a program, sound recording or film
may not rent it or lend it without the copyright owner’s permission.
In Amp Inc Vs. Utilux Pvt. Ltd 100, it was held that :
99
FSR (1994) 723
100
RPC (1972) 103
In Saphena Computing Ltd Vs. Allied Collection Agencies Ltd101, the Court
of Appeal had an opportunity to consider the position in common law with
respect to modification and error correction of licensed computer programs.
In that case, the licensee had been given a copy of the source code by the
licensor and there was consequently and implied undertaking that the licensee
could use it for error correction. He cannot use such source code for any other
purpose or modification or improvements of the program.
In British Leyland Motor Corp Ltd. Vs. Armstron Patents Co. Ltd102, the
House of Lords applied the principle of services non-derogation principles.
The principles of non-derogation could be applicable in such a manner that
the client can maintain the program himself and corrupt errors. For other
services, this source code should not be used.
In Canon Kabushiki Kaisha Vs. Green Cartridge Co (Hongkong) Ltd 103, the
Judicial Committee of the Privy Council, took a view that the tone of
cartridges and photo copying machines and Laser Printers cannot be replaced
without appropriate IPR authority. It said unlike in the case with replacement
of exhaust pipes, for motor cars, persons, buying photocopies and laser
printers would take into account the cost of replacement of cartridges over the
life of machines. Hence the committee decided that such replacement violated
the IPR laws.
101
FSR (1995) 616
102
2WLR (1986) 400
103
FSR (1997) 817
In RTE & ITP Vs. Commission104, the European Court of Justice held that
Failure to License Advance information relating to Forthcoming Television
Programmes to publishers of magazines containing information and Time
Tables of Programmes is an abuse under copyright Act.
In Express Newspaper Inc. Vs. Liverpool Daily Post & Echo Plc106, the
defendant claimed that letters produced by a programmed computer for a
newspaper competition could not be protected by Copyrights because the
grids have no human character.
In Macmillan & Co. Ltd Vs. K&J Cooper107, it was held that Compilations of
non original matter may be protected by Copyright provided that some effort
104
FSR (1995) 530
105
FSR (1894) 540
106
1WLR (1985) 1089
107
40 TLR (1923) 186
and labour have been put to the same. Otherwise, the same shall not be
subjected to Copyright Protection.
In Total Information Processing Systems Ltd Vs. Daman Ltd 109, it was held
that the Field and record specifications as expressed in the data division of a
COBOL program were not protected because, in this form, the information
did not form a substantial part of the computer program as a whole. It is
submitted that this approach is wrong and that it would be better to consider
the database structure as a form of expression in its own right and not as part
of the computer program. Jacob J expressly disapproved of this aspect of the
above case in the Ibcos case decided earlier. His view is much to be preferred.
In fact we distribute all our software using open source/ free software licenses
that are the polar opposite from being restrictive. Are we crazy? Or perhaps
ideological zealots intent on undermining the basis of commercial software?
Not at all! We are running a business, where, like anyone else running a
business, we are concerned with maximizing revenue so that we can continue
to develop and innovate (not to mention paying ourselves good salaries to
support our families.) So how can we afford to give our technology away?
That’s the question that is often asked, but it is quite off target and confused.
We don’t give our technology away; we sell it at competitive prices in a
market where many of our competitors do use restrictive licenses. But we
believe in giving the customer what they want and need. Restrictive licenses
are a big pain in the neck. For us it is a significant competitive advantage that
our software avoids these licenses, and many of our customers regard this as a
big plus when it comes to deciding what technology to choose in a highly
competitive market.
Despite this, people are still puzzled by our approach. We use the GPL license
for our main tools, and a modified version of the GPL for run-time libraries
and other components that our customers must be able to redistribute without
restrictions. Our customers are certainly not operating in the open source
environment. Many of them are developing highly proprietary systems, and in
some cases highly classified systems. We suspect that some of them would in
fact benefit from the use of more liberal licenses, but it is not our job to tell
customers what to do—it is our job to give customers what they want! So, if
we are using licenses like this, people wonder, how can we possibly make
money? The answer is simple, and it’s the same answer any software
company would give in describing their key to success—we provide well-
tested quality software, with excellent support and upgrades, along with clear
licenses that make the legal situation apparent. It is true that versions of our
software can be obtained cheaply or free (nearly every version of distributed
GNU/Linux comes with some version of our technology), but our customers
are willing to pay for the service we can offer. In particular, the support
services we provide are of key importance. If you have a large team working
on a critical project that gets held up because of some misunderstanding of the
technology they are using, the cost just in lost productivity can be huge, never
mind the costs of late delivery. In addition, it is very important for large
companies to have a very clear legal idea of the licensing of the software they
use, and a company to stand behind the license. Downloading miscellaneous
software from the Internet can be risky to your legal well-being!
It’s worth saying a bit more about support. Why do we provide excellent
support? Well part of the answer is that we are committed to our technology
and proud of our achievements, and want to make sure that people who use it
are successful. But more importantly, and much more convincingly from our
customer point of view, is that we charge for our software on an annual
subscription basis. We make money if people renew their support contracts.
They don’t have to—they could continue to use the technology without
support. So we have a strong incentive to provide good support so that our
customers will indeed renew their contracts. It’s always good when the
financial interests of a company are aligned with customer needs in this way.
But, you say, if you know about the GPL, what’s to stop people from freely
redistributing your technology, as permitted by the license? Yes, this is
theoretically possible, but no one can provide the support we do, and our
customers benefit from our high pace of continued innovation. Furthermore,
our customers are simply not in the business of redistributing our tools.
Interestingly, there is nothing to stop another company competing directly
with us to provide support and improvements. This hasn’t happened so far,
but the possibility is always there. Our business model has a certain “innovate
or die” aspect, which keeps us hard at work, and most certainly benefits our
customers.
It’s never a bad thing to have more freedom in what you can do with the
software you buy, but education is needed. If you have programmers who
simply assume they can do absolutely anything they like with open
source/free software, you need to disabuse them of this confusion, or you
could run into trouble. Remember also that just because you have the right to
do somtheing it is not necessarily a good idea to exercise that right. In a
recent conversation with U.S. Navy officials in charge of establishing navy
policy on open source usage, one of them said to me “Our lawyers are
warning us that we may acquire some undesirable legal liabilities if we
redistribute GPL’ed software.” My reply was that their lawyers were quite
right and that they should probably issue a policy forbidding this. After all, I
told them, the U.S. Navy s not in the business of redistributing software tools,
why should they change this policy? Still there is confusion. In one case a
large company insisted that we write them a special more restrictive license,
since their lawyers were suspicious of the very free licenses we provided.
However, as time goes by, more and more large companies depend on
widespread use of open source tools, and their lawyers get more comfortable
with the idea of copyright being applied to protect user rights and not simply
those of the vendor.
4.5 Conclusion
Introduction
Research indicates that the Indian IT Industry, given its emphasis on export
led growth and global competitiveness, is ready to proactively seize the
opportunities that creation of intellectual property affords. The Indian IT
Industry seems poised to break the ceiling, yet again, as it moves up the value
chain, generating and creating value – tangible and intangible.
A true and sustainable increase in national economic, social and cultural well-
being
In our own post-independent history, our pioneer IPM strategist was none
other than the engineer-scientist late Homi Bhabha. In mid-1940s itself,
Enrico Fermi had patented the nuclear reactor. This was followed by many
others in nuclear materials, processes and systems. The only possible way for
self-reliance in nuclear technology was through his celebrated ‘Growing
Science Model’ eminently supported through the Atomic Energy Act, 1962
and the relevant IPR clauses therein.
In the IT sector, software industry, the main activity consists of creation and
distribution of computer programmes. Software programming is like writing
a novel or other literary works and it requires intellectual skill and training.
Even though software is written by individual programmers, most of the
major software’s are the result of group efforts, where medium to large sized
teams spend months or even years to write a complete programme. Also in
the IT sector there are several companies, managing and maintaining
databases for clients in India and abroad. Other fields such as medical
transcription, back office maintenance are outsourcing activities under the IT
enable services.
In India, we organisations in the IT sector are facing the major threat of piracy
or unauthorised copying of the software. This means, copying and distribution
of computer programmes without the permission and is an unauthorised use.
Usually, computer programmes are prepared and distributed through
wholesalers and retailers. The dealers market and provide the software
products directly to end-users of computers. The end users can be individuals,
commercial enterprises, educational institutions and government
establishments. Sometimes, software publishers also deal directly with
software developing companies. Licensing is a common practice in software
industries. The publisher of software generally authorises its end users
through the mechanism of the shrink-wrap license contained in the package.
Software industry also faces several forms of piracy. In fact, piracy in
software is more than in others because it is relatively easy to copy software
in computers especially in PCs and for all practical purposes the pirated
version looks and performs in an identical manner as the original. The five
principal types of software piracy involve
(1) Counterfeiters
(2) resellers :
The Enforcement Branch, Calcutta police with the assistance from Nasscom
and BSA, seized pirated software worth of Rs. 2.61 crore (US$ 6,08,000)
from companies while conducting raids in the city. 4 persons, including
owners, partners and senior level employees of the companies, were arrested
for this offence. The police recovered around 636 CDs, and 2 computers
loaded with pirated software.
Hyderabad Police, with assistance from Nasscom and BSA, seized pirated
software worth of Rs. 75,16,400 (US$ 174,800) from 7 companies at a
conducted raid. 13 people, including senior level employees of the
companies, were arrested in this regard. The Police recovered around 293
CDs, 5 hard disks and 7 computers loaded with pirated software. The
estimated value of the pirated software was worth Rs.77 lakh.
Pirated software worth Rs.1.11 crore (US$ 253,200) was seized by the
Chennai police at a raid conducted at the premises of four outlets. A total of 6
employees were arrested which included the Managing Director of one outlet
and proprietors of each of the outlets.
The Reward Programme to make India's business community take note of the
dangers of software piracy. The reward offered, an amount up to Rs. 50,000
is for information leading to successful legal action against companies using
unlicensed software. The reward program was aimed to encourage people to
support the fight against piracy and to report software piracy to the
In modern times, IP is the most valuable asset. This is especially so for the
technology driven IT sector, where the very essence of their existence is the
IP rights. The efficient management and protection of IP can give a
tremendous start and boost for any corporate. Also an efficient IP Regime
can attract investments both domestic and foreign. Intellectual Property is the
most powerful commercial asset that the business possess. An IP asset can be
created even from non core activity. The classic example for this is that of
McDonald’s. They developed their own software for cash register and
order-tracking and other systems. In 2001 the company launched e-mac
digital to sell software and services to the global restaurant industry.
In the old generation business, assets meant real assets, such as land,
building, plant and machinery and other tangible items. They used to have all
these and took great pains to create, mange and protect the same. However in
the new generation business organisations, which are technology driven, it is
likely to have lesser investment in fixed capital. New generation business is
less dominated by fixed assets and more influenced by Intellectual Capital. In
the case of software industry, the intellectual capital is the very basis of their
existence and as such cannot ignore its management. This also emphasises
the need for organsing Management of IPR in software industries as a
separate management function, just like the other functional areas of
management.
How is the IP managed by the organization for creating value for the
company? Considering the value and power of intellectual property, too
much is at stake to ignore the protection and infringement of such valuable
property. Infringement lawsuits are very much on the increase. It is a must
for any organization to protect and safe guard its intellectual capital. For this
purpose, the following steps are essential.
Whtheer it has a system to minimize the risk of infringing third party rights,
evaluation of contractual term for the right assigned or used under license,
should the organization develop back up 'mark', how big should be the
inventory of IP.
Even though due diligence is usually used as a tool when there is a transfer of
the undertaking, there is a graet need on the part of the IP owner to have
thorough understanding of the assessment and the valuation of these assets,
and their role in commercial transaction. IP due –diligence can also facilitate
a company‘s thorough internal assessment of its own assets, self-audit can
help and enhance Intellectual Property planning and management.
The IPR Management function should also help to study and strengthen the
future value of the organizations IP. What will the position of organization be
5 years, 10 years from now? vis a vis the IP Rights, how are new ideas and
inventions managed and documented at the organisation? How to protect new
inventions, designs and trademarks in an efficient way?
Technology followers
R & D Laboratories
MANAGE
What are the steps being taken to uncover the additional data on IPR that has
been missed? In short the checks and balances of the system.
PROTECT
EXPLOIT
IPM should
Correlate IPRs with corporate financial records and key industry data.
should have the ability to view patents by industry codes, by using additional
data sources, filter by revenues and quickly narrow results using other
metrics.
CHAPTER – VI
6.1 Introduction:
With the onset of the new IPR Regime, R&D centres and technology-driven
industries will have to prepare themselves adequately to handle intellectual
property management programmes at the state-of-the-art level, without which
their activities would face serious impediments on account of infringement
by other competitors or arising out of unanticipated IP violation charges.
This new multidisciplinary unit, consisting of scientists, engineers, patent
attorneys and IT/Management experts, needs to be consciously planned and
experts inducted in large numbers to meet the needs of the user units. This is
a formidable task and the earlier the institutions wake up, the better.
The history, concept, components and practice of IPR, laws and policies.
Case studies and judicial decisions, the impact of IPR in the IT sector in
India.
Business scenario has changed drastically in the post localisation era due to
the explosive growth in technology, changing as if on a daily basis and
evolution of new laws and regulations and has to has to shift its attention to
such evolutionary policies to make effective contribution to the
organizational management.
In the First Chapter of this study, detailed chapterisation of the Thesis, with
the hypothesis, scope and analyses of chapters are being done with a view to
make an analyses of the present context of IPR as a Management function.
In the Second Chapter of this study, an analysis was made about the history
and importance of IPR. The emergence of knowledge based society demands
the issue of protecting and safeguarding the investments in IP, in the era of
modern technologies.
112
35 PTC (2007) DEL , 415
The following are some of the Important Suggestions derived from the study
is a recommendation to set up the IPR Managements as a separate function
in organisations, and the function should maximise income and wealth by
concentrating on the following aspects. This is more relevant in the context
of Indian IT sector since the exposure of Indian IT industry is very high as
the sector earns billions of dollars in revenue and provides employment o
millions of people.
The software industry in India has come of ages, and is mainly dependent on
the IP assets it creates.
The importance given to the portfolio of IPR in the modem era requires
efficient management of this portfolio so as to derive maximum benefits
from it. For such a management it is required planning. Conception of the
invention of the idea, identification of the IP created, appropriate protection
of the IP created and dissemination of the information contained in the IP
generated in a user-friendly manner including manufacture of the new
products (IP) / commercialization of the products (IP) are significant for an
analysis of IPR management concepts.
113
Science and Technology Policy of Govt. of India (2009)
It is suggested that proper amendments for protection of Data bases and New
Technology Protection has to be enacted by the Legislature to protect the
interests of Copyright Holders. The Draft Bill for Copyright Amendments114
in respect of the said amendments is in the final stage and is expected to be
enacted during 2010.
11-13, 2009. Sri. P.H. Kurien, Controller of Trade Marks, Patents and Copyright has mentioned that the new
Copyright Law is in the final stage and will be enacted during 2010.
Conclusion
The Indian software industry in the last decade has undergone tremendous
growth, and, with the shift in the strategy of the software industry towards,
moving up the value chain, and the strategies that Indian software companies
are undertaking to be competitive in the future, give thrust to the new and
different role for intellectual property and its protection in the Indian
software industry in the future.
A. BOOKS
8K.C. Kailasam & Ramu Vedaraman, Law of Trade Marks & Geographical
Indications – Law. Practice & Procedure, Second Edition, Wadhwa, 2005
10P. Narayanan, Law of Trade Marks and Passing off, Sixth Edition,
Easteren Law House, 2004
11P. Narayanan, Patent Law, Fourth Edition, Eastern Law House, 2006
12P.K. Mittal & O.P. Chadha, Supreme Court on Trade Marks, Copyrights,
Patents & Designs (1950 to 2005), Updated Edition, Om Law Book House
2006
15Salil K.Roy Chowdhury & H.K. Saharay, Law of Trade Mark, Copyright,
Patents and Designs, First Edition, Kamal Law House 1996
18Tim Kevan and Paul McGrath, E-mail, the Internet and the Law, Essential
Knowledge for Safer Surfing First Edition, Universl Publishing Co. 2007
B. ARTICLES
C. REPORTS
2.Reports of Patent, Design and Trade Mark Cases (RPC) and in Fleet Street
Reports (FSR).
1.µBrussels Convention§
4.µGeneva Convention§
6.µRome Convention§
8.The Berne Convention for the Protection of Literary and Artistic Works,
(Berne Convention), Switcherland in 1886
Organization (1967)
11.U.S.Constitution