The reference to on-line copyright issues can be found in the following two major enactments:

(1) The Copyright Act, 1957, and
(2) The Information Technology Act, 2000.

In this part i will discuss the online copyright issues in India under the Copyright Act, 1957 and the provisions of Information Technology Act, 2000 will be discussed in the next article.

COPYRIGHT ACT, 1957 AND THE ON-LINE COPYRIGHT ISSUES:

The following provisions of the Copyright Act, 1957 can safely be relied upon for meeting the challenges of information technology:

(a) The inclusive definition of computer is very wide which includes any electronic or similar device having information processing capabilities. Thus, a device storing or containing a copyrighted material cannot be manipulated in such a manner as to violate the rights of a copyright holder.

(b) The term computer programme has been defined to mean a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. It must be noted that Section13 (a) read with Section 2(o) confers a copyright in computer progamme and its infringement will attract the stringent penal and civil sanctions.

(c) The inclusive definition of literary work includes computer programmes, tables and compilations including computer databases. Thus, the legislature has taken adequate care and provided sufficient protection for computer related copyrights.

(d) The copyrighted material can be transferred or communicated to the public easily and secretly through electronic means. To take care of such a situation, the Copyright Act has provided the circumstances which amount to communication to the public. Thus, making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available, may violate the copyright. The communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.

(e) The copyright in a work is infringed if it is copied or published without its owner’s consent. The Copyright Act provides that a work is published if a person makes available a work to the public by issue of copies or by communicating the work to the public. Thus, the ISPs, BBS providers, etc may be held liable for copyright violation if the facts make out a case for the same.

(f) The copyright in a work shall be deemed to be infringed when a person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-
(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) Permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.

(g) The Copyright Act specifically exempts certain acts from the purview of copyright infringement. Thus, the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme from such copy in order to utilize the computer programme for the purpose for which it was supplied or to make back-up copies purely as a temporary protection against loss, destruction, or damage in order only to utilize the computer programme for the purpose for which it was supplied, would not be copyright infringement. Similarly, the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme is not a copyright violation if such information is not otherwise readily available. Further, there will not be any copyright violation in the observation, study or test of functioning of the computer programme in order to determine the ideas and principles, which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied. The Act also makes it clear that the making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use will not amount to copyright violation.

(h) If a person knowingly makes use on a computer of an infringing copy of a computer programme, he shall be held liable for punishment of imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees. However, if the computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.

It must be noted that copyright can be obtained in a computer programme under the provisions of the Copyright Act, 1957. Hence, a computer programme cannot be copied, circulated, published or used without the permission of the copyright owner. If it is illegally or improperly used, the traditional copyright infringement theories can be safely and legally invoked. Further, if the medium of Internet is used to advance that purpose, invoking the provisions of the Copyright Act, 1957 and supplementing them with the stringent provisions of the Information Technology Act, 2000 can prevent the same.

END OF PART XV.
TO BE CONTINUED.

ALL RIGHTS RESERVED WITH THE AUTHOR.