IP PROTECTION OF SOFTWARE AND SOFTWARE CONTRACTS: A STUDY IN INDIA
Keywords:
Software, Patents, Copyrights, Agreements, Sale of GoodsAbstract
Technological advancement is actively pursued by most countries, including India. It can be attained if the intellectual property of authors is adequately protected. This is because protecting intellectual property encourages creativity and innovation. It further protects the economic interests of the authors of the software. However, India has recently been criticized for having substandard levels of protection of intellectual property. This paper emphasizes the importance of having stronger protection of Intellectual Property with respect to software and software contracts. Centred around the Indian scenario, this paper questions the adequacy of laws pertaining to substantial copying, fair use rights, rights of the author, and eligibility for patent protection. It examines the legality of software contracts and the bias present in license agreements. It also highlights the problems caused by the scattered nature of laws governing the issue. Firstly, the paper will first give a brief introduction to the topic at hand and lay out the problems being faced. Secondly, the problems will be analysed using case laws, studies, and expert opinions. Thirdly, the laws of various countries in this area shall be compared. Lastly, suggestions to improve the protection of intellectual property with respect to software and software contracts in India shall be laid out. These would include enactment of specific legislations relating particularly to the issue at hand, defining vague terms, and prescribing of concrete tests that judges can use to settle disputes. The author has concluded that the law relating to the scope of protection, rights afforded to the parties, and the legality of various kinds of protection is inadequate. India further lags behind other countries due to there being no specific requirement, test, or precedent to be followed. Therefore, the protection afforded to software is currently inadequate.
Downloads
References
i
(2005) 1 SCC 308.
ii Cheshta Sharma, Intellectual Property in Indian Software Industry, IP & Business, Oct. 20, 2011.
iii Arya Matthew, Patent Protection for Computer Programmes, Altacit, Dec. 15, 2008.
iv Supra note 2.
v Ania Jedrusik, Patent protection for software-implemented inventions, WIPO MAGAZINE, Feb. 2017.
vi Tom C.W. Lin, Exclusive Trade Secrets, NOTRE DAME LAW REVIEW, Feb. 1, 2012.
vii SK Verma, IP Protection of Software and Software Contracts in India: A legal Quagmire, 17 Journal
of Intellectual Property Rights. 284-295 (2012)
viii Kumar Sandeep, India: Aspects of Patentability of Software Programmes in India, MONDAQ, Jun. 28,
2016.
ix Section 52A, 1994 Amendment to the Copyright Act, 1957..
x Srimangal & Co v Books (India) Ltd, AIR 1973 Mad. 49.
xi Supra note 7.
xii Microsoft Corporation v Vijay Kaushik and Anr, 2011 (48) PTC 127 (Del)
xiii [1978] 4 SCC 118
xiv 45 F.2d 119
xv 126 F.3d 365
xvi Supra note 7.
xvii Sugandha Nayak, Copyright Protection for Computer Software: An Indian Perspective, Mondaq, Sept.
13, 2013
xviii Supra Note 1.
xix Supra Note 7.
xx Section 27, Indian Contract Act 1860.
Downloads
Published
Issue
Section
License
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
License Terms
Ownership and Licensing:
Authors of research papers submitted to any journal published by The Law Brigade Publishers retain the copyright of their work while granting the journal specific rights. Authors maintain ownership of the copyright and grant the journal the right of first publication. Simultaneously, authors agree to license their research papers under the Creative Commons Attribution-ShareAlike 4.0 International (CC BY-SA 4.0) License.
License Permissions:
Under the CC BY-SA 4.0 License, others are permitted to share and adapt the work, even for commercial purposes, provided that appropriate attribution is given to the authors, and acknowledgment is made of the initial publication by The Law Brigade Publishers. This license encourages the broad dissemination and reuse of research papers while ensuring that the original work is properly credited.
Additional Distribution Arrangements:
Authors are free to enter into separate, non-exclusive contractual arrangements for distributing the published version of the work (e.g., posting it to institutional repositories or publishing it in books), provided that the original publication by The Law Brigade Publishers is acknowledged.
Online Posting:
Authors are encouraged to share their work online (e.g., in institutional repositories or on personal websites) both prior to submission and after publication. This practice can facilitate productive exchanges and increase the visibility and citation of the work.
Responsibility and Liability:
Authors are responsible for ensuring that their submitted research papers do not infringe on the copyright, privacy, or other rights of third parties. The Law Brigade Publishers disclaims any liability for any copyright infringement or violation of third-party rights within the submitted research papers.
