ACCESS TO PROTECTED WORKS: LIMITS OF PERMITTED USE FAIR DEALING OF COMPUTER PROGRAMME SUBMITTED BY PRIYAMVADHA P.

Introduction Indian Copyright Act, 1957 protect the expression of ideas rather than the ideas themselves. Exclusive rights to creators. u/s 13 of the Act, protection is conferred on literary, dramatic, musical, artistic works, sound recording &cinematograph films. Computer programmes are protected u/literary works.

S. 13(a) read with S. 2(o) confers copyright on computer programme. Computer programme is defined u/s 2(ffc) of the Act.

Limitations& exceptions Act specifically exempts certain acts from the purview of infringement. Fair dealing is an affirmative defense to infringement Limitations & exceptions limits the creators rights for public interest reasons and it gives access to public. Exclusive rights stimulate production of creative works & exceptions to it creates a balance btw creative works & public interest.

Analysis of provisions relating to fair dealing of computer programmes Computer programmes cannot be copied, circulated or published without permission of owner except : u/s 52 (1) (aa) Restricted to making of copies & adaptations for use of the copy for which it was supplied and also making back ups. No guidance is provided as to what constitutes the purpose for which it was supplied. It could depend upon contracts & routine purposes which implies => adaptation of it to user’s own environment is within it’s meaning. But limitation on purpose provides restriction on adaptation.

u/s 52 (1) (ab) doing of any act necessary for obtaining information creates dilemma as it provides no guidance. Term “necessary” seems vague and give rise to many questions Does it mean the programmer has to try all other methods before resorting to decompilation? Its restricted to “any acts”&includes decompilation exception for interoperability. Interoperability is not defined nor Act provides any test to assess it.

Use factor in computer programs involves reproduction unlike other literary works. Thus distinction is necessary btw simple reproduction &use as obtaining info. Quantum of copying is not fixed as well. Use of term readily available broadens the access to works as permission is not required for reverse engineering. Act envisages no permission by contract – it frustrates fair dealing.

u/s 52 (1) (ac) Allows certain specific acts directed towards program analysis. Includes non-violative acts not decompilation. Scope is narrow as to access of work as it provides minimum access to unprotected ideas underlying any element of the program. Silent about quantum of copies. Acts necessary => who should determine it? Absence of term lawful possessor in S. could lead to broad interpretations.

u/s 52 (1) (ad) Allows making copies & adaption for non-commercial use. S. builds nexus btw copy used & the person to restrict its meaning. Only direct licensee could avail it. Personal use can invoke circulation among a closed group- but it’s definite in nature hence limited.

Punishment Knowingly infringes liable for punishment. Imp. for a term not less than 7 days; extend to 3 years Fine not less than Rs.50,000; extend to 2 lakhs Programme not used for gain; not impose imp. Only fine.

TRIPS and India Changes in national legislation for complying with TRIPS. TRIPS explicitly mandated u/Art. 10.1 protection to computer programmes. Art.13 provides for limitations and exceptions to copyright. It’s similarly worded as Art.9(2) of Berne convention. Art.13 popularly called as three step test.

Certain special cases Pass test of legal certainty Exception should be a special one Conflict with the normal exploitation of the work Should not enter into economic competition If it does – overriding justification is there. Does not unreasonably prejudice the legitimate interests of the author. Application of this test is still controversial

Conclusion S.52 is ambiguous in many areas which leads to defenseless interpretations. Broader interpretations should be there so as to permit access to work. Broader interpretations of sections qualify the three step test and hence sections are compatible with TRIPS.