he Copyright Act, 1957(Act No. 14 of 1957) governs the laws & applicable rules related to the subject of

copyrights in India. Copyright Law in the country was governed by the Copyright Act of 1914, was

essentially the extension of the British Copyright Act, 1911 to India,and borrowed extensively from the

new Copyright Act of the United Kingdom of 1956. All copyright related laws are governed by

the Copyright Act, 1957.[1]

The Copyright Act today is compliant with most international conventions and treaties in the field of

copyrights. India is a member of the Berne Convention of 1886 (as modified at Paris in 1971),the

Universal Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual

Property Rights (TRIPS) Agreement of 1995.

Though India is not a member of the Rome Convention of 1961, WIPO Copyrights Treaty (WCT) and the

WIPO Performances and Phonograms Treaty (WPPT),the Copyright Act is compliant with it.[2]

Software Patent and Copyright Laws in India 

This Midterm Paper investigates the Intellectual Property Rights (IPR), primarily Copyrights and Patents in India. The Paper performs a Legal as well as Ethical Analysis of the Indian IPR Laws. It recommends improvements; especially regarding Global Issues related to Software Patents and IPR over the Net by substantiating evidence from the Embassy of India Policy Statements and from a reputed magazine in India, called India Today. The author fully acknowledges citations from all the references. 

Intellectual Property Rights in India 

There is a well-established statutory, administrative and judicial framework to safeguard intellectual property rights in India, whether they relate to patents, trademarks, copyright or industrial designs. Well-known international trademarks have been protected in India even when they were not registered in India. The Indian Trademarks Law has been extended through court decisions to service marks in addition to trademarks for goods. Computer software companies have successfully curtailed piracy through court orders. Computer databases have been protected. The courts, under the doctrine of breach of confidentiality, accorded an extensive protection of trade secrets. Right to privacy, which is not protected even in some developed countries, has been recognized in India. [1] 

Protection of intellectual property rights in India continues to be strengthened further. The year 1999 witnessed the consideration and passage of major legislation with regard to protection of intellectual property rights in harmony with international practices and in compliance with India's obligations under TRIPS. 

As regards the aspect enforcement, Indian enforcement agencies are now working very effectively and there has been a notable decline in the levels of piracy in India. In addition to intensifying raids against copyright infringers, the Government has taken a number of measures to strengthen the enforcement of copyright law. Special cells for copyright enforcement have been set up in 23 States and Union Territories. In addition, for collective administration of copyright, copyright societies have been set up for

different classes of works. 

Copyright Protection in India 

India has one of the most modern copyright protection laws in the world. Major development in the area of copyright during 1999 was the amendment to the Copyright Act of 1957 to make it fully compatible with the provisions of the TRIPS Agreement. Called the Copyright (Amendment) Act, 1999, this amendment was signed by the President of India on December 30, 1999 and came into force on January 15, 2000. 

The earlier 1994 amendment to the Copyright Act of 1957 had provided protection to all original literary, dramatic, musical and artistic works, cinematography, films and sound recordings. It also brought sectors such as satellite broadcasting, computer software and digital technology under Indian copyright protection. The Copyright Act is now in full conformity with the TRIPS obligations. 

The other important development during 1999 was the issuance of the International Copyright Order, 1999 extending the provisions of the Copyright Act to nationals of all World Trade Organization (WTO) Member countries. 

Commendable Software Copyright Protection in India 

The Indian government has introduced an intellectual property law that protects inventions. This law, under the Copyright Act, 1957, provides copyright protection to computer software programs as well. Major changes to the Copyright Act were introduced in 1994, the most important being imposition of heavy punishment and fines for infringement of copyright of a software program. For the first time in India, the Act clearly explained the rights of a copyright holder, position on rentals of software and the rights of a user to make backup copies. [2] 

According to the 1994 Act, those infringing the Act can be tried under both civil and criminal laws. This was done to curb the rampant practice of making unauthorized copies of software programs (which are easy to duplicate and the copy is usually as good as the original). According to Section 14 of this Act, it is illegal to make or distribute copies of copyrighted software without proper or specific authorization. The only exception is provided by Section 52 of the Act, which allows a backup copy purely as a temporary protection against loss, distribution or damage to the original copy. The 1994 amendment also prohibits the sale or hiring, or any offer for sale or hire of any copy of a computer program without specific authorization by the copyright holder. 

Civil and criminal actions may be instituted for injunction, actual damage (including infringer's profits) or statutory damages per infringement. With these amendments, even criminal penalties have been substantially increased. The Act stipulates a minimum jail term of seven days, which can be extended up to three years, and an additional fine of up to Rs 2,00,000. 

Patent Protection in India 

The Indian Patent laws are neutral in their application to domestic or foreign inventions. Any disqualification, compulsory licensing, and exclusion from patentability, are provided for only in the larger interest to provide therein necessary and adequate safeguards for the protection of public interest, national security, bio-diversity, traditional knowledge, etc. These provisions are within the sphere allowed under Article 27, 30 and 31 of TRIPS. 

Software Patent Protection in India – A Legal Analysis In India, unfortunately, there is no provision for software to be patented. A software program is an algorithm and patent law does not protect algorithms per se. The term 'software' includes computer programs, databases, computer files, preparatory design material and associated printed documentation, such as users' manual. 

Under Indian law, computer programs have copyright protection. But the IT industry says computer programs should have patent protection, which is more comprehensive than copyright laws. "Anything under the sun can be patented provided it satisfies the test of novelty, usefulness and non-obviousness. In recent times, the patent law worldwide has emerged as a powerful means of protecting computer programs as a patent has inherent advantages over a copyright," says Avinash Vashista, (CEO, neoIT, an e-services firm) in India Today. 

Patents protect software against reverse engineering, where the source code of a program is recreated from the supplied object code. In its source form, a computer program is much easier to amend. Many software and hardware companies have so far taken advantage of the copyright law's lack of protection against creation of 'clones' through reverse engineering, says India Today. For example, under the Indian Copyright Act, copying from an engraving is an infringement of copyright, but an engraving produced independently from the same picture is not. Copyright laws generally do not protect the owner from independent creation or reverse engineering. 

India Today says patent laws eliminate this loophole by providing protection irrespective of whether the work was independently created or copied. Even if the infringing device was created without the knowledge of the original device, it is an infringement of the patent's rights. Thus, a piece of software patented cannot be reverse-engineered and sold by another company. 

Unfortunately, there are no guidelines or stated procedures followed by the Indian patent office with regard to computer software. The IT Act, 2000, also does not provide any lead in this direction. Consequently, Indian firms/individuals have to go to the US for getting their products patented-a cumbersome and expensive process. 

In India, there is definitely a need for patenting software codes as a protection against software giants whose financial clout cannot be matched by an individual or a small company. 

According to a report by software industry forum NASSCOM, in 2000 Indian companies introduced 122 software products in the domestic market, while foreign companies launched 158 software products. However, most Indian products don't have patent protection. 

Software Patent Protection in India – An Ethical Analysis Law and Morality 

In India, Software Patent Law is undefined and has not caught up with the rapid pace of technological change. Since there is no law, Indian citizens and corporations should not indulge in blatantly copying software ideas and develop similar products on their own at a cheaper price. Individuals and corporations in India cannot assume that just because law permits a certain course of action that this action is morally acceptable. Because the Indian courts may allow an Indian software vendor to "reverse engineer" another company's product, it doesn't necessarily follow that this action is not tantamount to the theft of intellectual property. The individuals or corporations in India thinking of indulging in such immoral acts should ask the Ethical questions: What if everybody did what I did? What sort of world would it be? Whose rights have

been violated? Whom could the action injure? Does the option chosen respect basic human goods? [3] 

Theological - Ethics of ends - Utilitarianism (Consequentialism) 

India has much looser protection of property rights than the United States. The Indians, for example have no laws that allow patenting of software products; this practice encourages others to use this information as a basis for further innovations or commercial applications. Once again invoking utilitarianism can develop a tenable rationale for this approach: By loosely protecting intellectual property Indian society benefits through the more rapid diffusion of technology. Thus, this scheme of non-existent patent protections in India will inevitably lead to beneficial social consequences. There are utilitarian arguments on the other side of the issue that stronger protection can be seen as an important incentive to stimulate innovations, which is precisely not happening in India. 

Deontoloigcal - Ethics of duty - Pluralism (Duty-based) Universal Acceptability 

The criterion for differentiating between right and wrong in India, then, becomes the following: Do all rational beings accept this action or decision of not patenting software regardless of whether they are perpetrators or the victims? In other words, Indians should remember the "Golden Rule": Do unto others, as you would have them do unto you and if tempted to misuse software patents abroad ask the questions: Would the victim and other neutral parties consider their actions moral and above board? Is my action universally acceptable even to those who are directly affected by it? 

Intellectual Property and the Internet in India IPR and the Internet – A Legal Analysis Cyber Squatting 

Besides copying of software codes, the biggest challenge that law-enforcing authorities face today is that of cyber squatting, that is, illegal registration of Internet domain names of famous companies, brands and personalities. In a recent case (Yahoo Inc. Vs Akash Arora & Anr 78 - 1999), the Delhi High Court granted injunction in favor of Yahoo Inc. against the defendant. The defendant had created a Web-site yahooindia.com, nearly similar to the plaintiff's renowned yahoo.com, providing almost comparable services. The court granted an injunction restraining the defendants from using the name yahooindia.com. 

The WIPO, a UN agency, had convened an international meet to develop recommendations covering intellectual property associated with Internet domain names, including dispute resolution. The recommendations have been made available to a new organization, the Internet Corporation for Assigned Names and Numbers (ICANN), which manages the Internet domain name system. 

Cyber Laws 

Being a new territory, Indian law-enforcing authorities need to address many gray areas. Security analysts feel that the Indian IT Act merely integrates law and technology and that there is no coherence between the two. They are also unhappy at the way the importance of intellectual property has been ignored. Though authentication and recognition of digital signatures and electronic documents under the IT Act will facilitate the process of improving and introducing more Net-specific laws, the laws covering intellectual property over the Net are inadequate. 

IPR and the Internet – An Ethical Analysis Deontoloigcal - Rights-based (Contractarianism) Rights 

In India, because of absence of concrete laws for protection of personal information over the Net, it seems essential to formulate the scope of an individual's "information rights," that is, the rights that individuals in India should possess regarding their personal information over the Net that is scattered about in various databases. It can be plausibly argued that at a minimum every person in India deserves a right to the privacy, accuracy, and security of such information over the Net. The data subject in India should have the right to have its data maintained in a way that keeps it confidential, accurate, and secure over the Net. 

Justice 

Equal or universal access to the emerging information "highway" for example, is an important justice issue for a poor country like India. Justice as fairness seems to demand universal access for all persons regardless of income, background, or location in India. 

Conclusion 

The Government of India has taken several measures to streamline and strengthen the intellectual property administration system in the country. As regards the aspect enforcement, Indian enforcement agencies are now working very effectively and there has been a notable decline in the levels of piracy in India. It is to be noted that 1999 has been a year of great coherence of political will, resulting in the passage of major IPR laws and work toward the establishment of an effective administration mechanism. 

Based on the aforementioned Legal and Ethical Analysis, it is imperative for India to enact laws that guarantee Patent Protection for Software and strengthen its IT Act to provide adequate IPR Laws for the Net. 

Citations 

[1] EMBASSY OF INDIA, “Policy Statements” 

[2] R. Srinivas, “INTELLECTUAL PROPERTY – Protect Your Product” 

[3] From a revised and modified version of “Frameworks for Ethical Analysis,” Chapter 2 of Ethical aspects of Information Technology. (Prentice Hall) 

25 Software Licensing Models

(in alphabetical order by name)

Maria Tseng, +1.408.406.9528

1. Beta or field test This type of license is used to get feedback so usually expire at the end of the

Beta test and are not renewed. The product is likely not be „production grade‟ and the licensee

may be required to exercise the software under certain conditions and to submit reports, as well

as limit use to defined environments and users that fit a specific profile.

2. Capacity or performance A licensing model based on the host computer‟s (one or more

servers‟) capacity or performance can be used for compute-intensive applications such as

databases or transaction processing. However, the complexity and diversity of computers,

platforms, networks and fabrics make deriving relevant metrics extremely equivocal. The

business value is likely to be not at all related to CPU cycles nor processes invoked.

3. Cross license These are used when the licensor and licensee(s) agree to exchange rights. The

rights are not necessarily symmetrical, nor no-fee. It can be a way for people to leverage their

intellectual property by exchanging value on a no-cash basis. Also see Development License and

Group License.

4. Demo or evaluation Such licenses are granted for a short time such as 30 days or a number of

uses. Usually, production-level work is not allowed and some features may be limited or disabled,

or it may have a time bomb that disables the product at a certain time. The types of users,

platforms, content or tools may also be prescribed.

5. Development These licenses can require granting rights to modify the software, or in some

cases, to create derivative works. Alternatively, the grantor may want rights to modify the output

of the development effort; or the licensee may need to retain residual rights in order to support

the output. Development licenses are used to gain special knowledge and to supplement

engineering effort.

6. Duplicate grouping (license sharing) by user, host or display Grouping defines rules for

counting usage when a single user concurrently runs the same application on several computers.

This instance may count as a single use or a multiple use, depending on the license terms.

7. End User License Agreements (EULA), Shrink Wrap or “click through” These are most

common license models for online and single user software. They usually grant the perpetual

right to use, only for one end-user on one computer at a time, a

8. Enable/disable product features Common features such as personalization may be licensed

across a suite of products. This type of license grants rights to use specific features. It is used to

create an upgrade path from a “lite” version to “standard,” “pro,” “enterprise” etc. versions without

modifying the software nor uninstalling the existing version.

9. Exclusive In exclusive licenses, the licensee is the only party to which certain rights are granted.

Such licenses are rare because they increase the licensor‟s opportunity cost. The rigorous

limitations to exclusivity can be any combination of time, territory, industry, named competitors,

exercisable features (singly, in combination or in unrelated groups), field of use, or any of the

myriad of possible business or legal terms.

10. Floating (concurrent) over a list of hosts Such licenses provide for concurrent use in a

network, but the license rights are tied to a specific list of computers.

11. Floating (concurrent) over a network This type of license grants a specific number of

concurrent users on a network.

12. Group License This type of license can be used to develop a consortium. It grants rights only to

members of a specific group such as named entities, or those that adhere to a particular standard, or have received a particular certification. Group licenses may require licensees to

grant special rights to all members of the group such as mandatory no-fee cross-licensing.

13. High-water mark of past use Usage fees are calculated based on the maximum number of

concurrent users in a defined past time period (typically monthly).

14. Linger use The user has license rights for a fixed time period. Linger licenses are attractive for

applications that are used for very short periods such as a few seconds or minutes. They

increase the number of low-cost licenses that larger customers must buy, while small customers

may enjoy a lower price thereby allowing the vendor to reach a broader audience through pricing.

15. Named-user (personal licenses) License rights are granted to specific login IDs. The software

may be used on any computer by a login ID that is on a list of licensed users. A single login ID

can only use the software at one time, no concurrent log-ins by the same ID.

16. Node-locked (named-host) Software is licensed for use only on one or more named computer

systems. Usually, CPU serial number verification is used to enforce this type of license.

17. Node-locked counted Software is licensed for a limited number if concurrent users on a single

computer system.

18. OEM Such licenses are used to allow OEMs to integrate software into their products or services,

then sell the combined product. OEM licenses must grant rights such as sub-licensing so that the

OEM can transfer rights to its channels and customers. Payments to the licensor can include

license fees; royalties per license; percentage of product revenue; number, type and size of

accounts or users.

19. Overdraft Such licenses grant N more licenses than were purchased, giving customers a way to

manage peak use without violating the license. The licensor can charge a fee for overdrafts

protection (insurance) as well as separate fees for each overdraft license. Advantages to

licensors are flexibility, simplicity, and price locks that give predictable costs.

20. Packages or bundling Packages licenses grant rights to use a set of functionally dependent or

independent products, or bundle. Vendors define the components of the packages or bundles in

the license agreement. Such licenses allow vendors to easily customize solutions on a marketing,

not engineering, level.

21. Package suite Package suites restrict the concurrent sharing of a package‟s components. For

example, no two users may concurrently use MS Word and MS PowerPoint. This type of license

is used by vendors with broad product lines as a competitive price discounting strategy.

22. Pay-per-use License fees are based on actual usage. The usage counter may be based on

metrics such as CPU use or on metrics related to the nature of the application.

23. Site license Grant rights to all valid users at a named location; may be unlimited in number, or up

to a certain number. This is a cost-effective option for large customers, especially where the

usage load might grow quickly or varies greatly.

24. Time-limited Such licenses have a specific, automatic expiration date that is not automatically

renewed. They are used to „force‟ re-negotiation of license terms.

25. Upgrade dates and/or version numbers Upgrade terms grant rights to use upgraded versions

of the software. The customer may upgrade only X number of times or the customer can only use

specific upgrade versions, or can must upgrade within a certain time period following the release

of Version X. These terms encourage the installed base to use certain versions so that the

licensor may withdraw, or offer special pricing for support of other versions.

Appliance:  A license covering use of a specific piece of hardware, such as a hub, router, or PBX. Terms and conditions vary between vendors.

User:   A license that provides access to the software to a specific number of users. All installations of the software will be counted but installations across multiple devices for the same user will be counted as one license consumption.

Concurrent User:  A license which provides wider access to the software but limits the number of simultaneous users using the software. It may or may not include compliance enforcement capabilities. Typically, a concurrent license is “checked out” from the license server when the software is run, assuming a license is available. If no license is available, the requester experiences a denial of service.

Named User:  A license that allows access to the software by a specific number of named users. In some cases, these licenses can be transferred from one user to another. When you create the license, you should allocate the license to specific users. Only installations associated with allocated users are counted. For example, if the license is allocated to users Sam and Jan, the maximum installation count is two. Any other installations of the licensed application are treated as unassigned installations. For example, if May has also installed the licensed application but has not been allocated to the license, her installation will not be shown against installations of this license.

Enterprise:   A license to install software an unlimited number of times within the enterprise. An Enterprise Agreement, such as the Microsoft EA, is defined separately to this in FlexNet Manager Suite(FNMS). An Enterprise Agreement is structured as ‘all you can eat’ but the organization must be licensed for a specific quantity of licenses so this is not strictly an ‘Enterprise License’ model in its pure form.

Evaluation:  A license that allows one or more users to install and use software for trial purposes. Evaluation licenses may be time limited, may offer limited functionality, or may restrict or mark output (for example, some PDF writing software includes the name of the software on every PDF document produced from a trial version). After evaluation, a user may purchase a full license, uninstall the software, or (for time-limited trials) the software will simply no longer work.

Node Locked:  A license that allows access to the software on a specific number of named computers. These licenses are usually for server applications such as database or VMware products. In some cases, these licenses can be transferred from one computer to another, usually by requesting a new license key.

OEM:  A license for software that is delivered with the hardware and is only for use on that piece of hardware. These licenses are tied to the lifecycle of the hardware and typically cannot be transferred to other hardware.

Processor (per Processor/CPU):   A license based on the number of  CPU/Processor sockets on which the software will run, and NOT the logical processors aka cores.

Client Server:  A server license that is based on a device metric. In many cases this type of license may also have a Client Access License (or CAL) aspect. In a Server/CAL model a license must be purchased for the physical server (or virtual server – there are varying rules around virtualisation) and also additional ‘access’ licenses must be purchased for any users/devices that may access the server for that application.

Run-Time:  A license that provides access rights to third party software embedded in an application. The use of the runtime license is limited to the application through which it has been acquired.

Site:  A license to install software on an unlimited number of computers at one physical location.

Device (most common metric):  A license for a defined number of software installations. The software may be uninstalled on one computer and installed on any other computer within the same enterprise, so long as the total number of installations does not exceed the number of  purchased licenses.

Core/Processor points:   A license based on points applied as a multiplier to the number of Cores/Processors in the physical server, or in some cases, the virtual machine. Some vendors count Processor sockets and others count logical processors, or cores, but the license model is similar. For example an application installed on a 4 processor server with 100 points per processor would require a purchase of 400 processor points to cover the license liability. These licenses are mainly used for Datacenter software licensing such as IBM.

Common Software Asset Management (SAM) Terms

Installations:  The number of raw software installations without product use rights or license metrics applied.

Entitlement:  The number of purchased licenses available combined with any contractual or product use rights.

Consumed:  The actual license liability (not to be confused with ‘Installs’), consumption is the install count applied against the entitlement.

Compliant:  If the number of licenses consumed is less than or equal to the number of licenses purchased.

Breach:  If the number of licenses consumed is more than the number of licenses purchased.

Delta:  The difference between the number of licenses consumed and the number p

Open source software (OSS) is computer software with its source code made available and licensed

with an open source license in which the copyright holder provides the rights to study, change and

distribute the software to anyone and for any purpose. Open source software is very often developed in a

public, collaborative manner. Open source software is the most prominent example of open

source development and often compared to (technically defined) user-generated content or (legally

defined) open content movements.[1]

A report by the Standish Group states that adoption of open source software models has resulted in

savings of about $60 billion per year to consumers.[2][3]

The free software movement was launched in 1983. In 1998, a group of individuals advocated that the

term free software should be replaced by open source software (OSS) as an expression which is less

ambiguous and more comfortable for the corporate world.[4] Software developers may want to publish

their software with an open source license, so that anybody may also develop the same software or

understand its internal functioning. With open source software, generally anyone is allowed to create

modifications of it, port it to new operating systems and processor architectures, share it with others or, in

some cases, market it. Scholars Casson and Ryan have pointed out several policy-based reasons for

adoption of open source, in particular, the heightened value proposition from open source (when

compared to most proprietary formats) in the following categories:

Security.

Affordability.

Transparency.

Perpetuity.

Interoperability.

Localization—particularly in the context of local governments (who make software decisions). Casson

and Ryan argue that "governments have an inherent responsibility and fiduciary duty to taxpayers"

which includes the careful analysis of these factors when deciding to purchase proprietary software

or implement an open source option.[5]

The Open Source Definition, notably, presents an open source philosophy, and further defines the terms

of usage, modification and redistribution of open source software. Software licenses grant rights to users

which would otherwise be reserved by copyright law to the copyright holder. Several open source

software licenses have qualified within the boundaries of the Open Source Definition. The most prominent

and popular example is the GNU General Public License (GPL), which "allows free distribution under the

condition that further developments and applications are put under the same licence", thus also free.[6] While open source distribution presents a way to make the source code of a product publicly

accessible, the open source licenses allow the authors to fine tune such access.

The open source label came out of a strategy session held on April 7, 1998 in Palo Alto in reaction

to Netscape's January 1998 announcement of a source code release for Navigator (as Mozilla). A group

of individuals at the session included Tim O'Reilly, Linus Torvalds , Tom Paquin, Jamie Zawinski, Larry

Wall, Brian Behlendorf, Sameer Parekh , Eric Allman, Greg Olson, Paul Vixie, John Ousterhout, Guido

van Rossum, Philip Zimmermann, John Gilmore and Eric S. Raymond.[7] They used the opportunity

before the release of Navigator's source code to clarify a potential confusion caused by the ambiguity of

the word "free" in English.

Many people claimed that the birth of the Internet, since 1969, started the open source movement, while

others do not distinguish between open source and free software movements.[8]

The Free Software Foundation (FSF), started in 1985, intended the word "free" to mean freedom to

distribute (or "free as in free speech") and not freedom from cost (or "free as in free beer"). Since a great

deal of free software already was (and still is) free of charge, such free software became associated with

zero cost, which seemed anti-commercial.

The Open Source Initiative (OSI) was formed in February 1998 by Eric S. Raymond and Bruce Perens.

With at least 20 years of evidence from case histories of closed software development versus open

development already provided by the Internet developer community, the OSI presented the 'open source'

case to commercial businesses, like Netscape. The OSI hoped that the usage of the label "open source,"

a term suggested by Peterson of the Foresight Institute at the strategy session, would eliminate

ambiguity, particularly for individuals who perceive "free software" as anti-commercial. They sought to

bring a higher profile to the practical benefits of freely available source code, and they wanted to bring

major software businesses and other high-tech industries into open source. Perens attempted to register

"open source" as a service mark for the OSI, but that attempt was impractical by trademark standards.

Meanwhile, due to the presentation of Raymond's paper to the upper management at Netscape—

Raymond only discovered when he read the Press Release , and was called by Netscape CEO Jim

Barksdale's PA later in the day—Netscape released its Navigator source code as open source, with

favorable results.