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Journal of Intellectual Property Rights (JIPR) >
JIPR Vol.17 [2012] >
JIPR Vol.17(4) [July 2012] >
| Title: | IP Protection of Software and Software Contracts in India: A Legal Quagmire! |
| Authors: | Verma, S K |
| Keywords: | Software
Copyright
Computer programme
Contract law
Fair use |
| Issue Date: | Jul-2012 |
| Publisher: | NISCAIR-CSIR, India |
| Abstract: | Software in India are protectable under copyright law as computer
programmes, but the scope of a ‘literal’ part of a programme and the limits of
substantial copying are not yet settled. Author’s ‘fair use’ rights and licence
use rights are similarly not clear. Software per se is not patentable, but there are no guidelines as in when
software is patentable under the Patents Act. But they are protectable as trade
secrets under the common law. Software contracts, like any other transaction,
are governed by common law principles as embodied in the Contract Act.
Contracts can be in the nature of sale or assignment/licence, hence subject to
different laws - Sale of Goods Act, Consumer protection Act, Competition Law,
tax laws, apart from the relevant IP laws. Because of their peculiar nature,
sale of software is not at par with the sale of goods; hence they are generally
licensed where the owner has wider rights. Presence of the Internet element in
licensing makes these contracts subject to conflict of laws. In contrast to
open source licences, proprietary licences curtail substantially the ‘fair use’
rights. These issues require clarification through a proper legislation. This
study examines the Indian law on legal protection of software and takes stock
of the types of software contracts and the nature of licences that are generally
entered into by the parties. |
| Page(s): | 284-295 |
| CC License: |  CC Attribution-Noncommercial-No Derivative Works 2.5 India |
| ISSN: | 0975-1076 (Online); 0971-7544 (Print) |
| Source: | JIPR Vol.17(4) [July 2012]
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