Comments on Yogesh A. Pai’s paper on Fair Dealing of Computer Programs in India By Nikhil Narendran Associate, Trilegal

Section 52 (aa) making of copies or adaptation of a computer program by the lawful possessor of a copy of such computer program, from such copy- (i) in order to utilise the computer program for the purposes for which it was supplied; or (ii) to make back-up copies purely as a temporary protection against loss, destruction or damage inorder only to utilise the computer programm for the purpose for which it was supplied Making Copies/Adaptation (section 52(aa))

The purposes for which the program was supplied License terms Whether its public policy or a private right “Every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or pubic policy. Where there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only or whether it is an Act which is intended as a matter of public policy” Making Copies/Adaptation (section 52(aa))

General uses of software rather than specific restriction Examples: Home use Industry specific Making Copies/Adaptation (section 52(aa))

Reverse Engineering (section 52(ab)) The doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer program with other program by a lawful possessor of a computer programme provided that such information is not otherwise readily available; Permits certain acts to obtain information Information not otherwise available Will manuals and FAQS be construed as information?

Reverse Engineering (section 52(ab)) Purpose of this clause is not to allow the copyright holder to collect royalties for providing information Not available if a developer gives the information about a program for free Independently created computer program? MS Office – OpenOffice MS Office- MS Project

Reverse Engineering (section 52(ab)) Error fixing – to be permitted if the developer refuses Doing of any act necessary to obtain information Does not contemplate replacement of a software Lawful possessor Impractical to require programmers to keep paper files of the history of decompilation

Limited Research exception (52(ac)) Observing, studying and testing of functioning For the purposes for which the program was supplied

Contractual restrictions on reverse engineering For the purpose for which the program was supplied Section 28 of the Indian Contract Act Section 23 of the Indian Contract Act Contract barring reverse engineering

Fair Use and IT Act Section 43 of IT Act Proviso to section 81 of IT Act: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 or the Patents Act, 1970.

Fair Use and IT Act Section 43 of IT Act Any person without permission: accessing or securing access to a computer, computer system or computer network or computer resource; or destroying, deleting or altering any information residing in a computer resource computer resource" is defined under section 2(k) of the IT Act to mean a computer, communication device computer system, computer network, data, computer data base or software.

Fair Use and IT Act Exceeding fair use Section 66 IT Act Risk of Prosecution under IT Act

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