The Indian Copyright Act is touted as one of the toughest in the world. Ironically India also features among the countries with high piracy rates. Where then should we pull up our socks and realize the dream of making India a software superpower?
Put simply, there is no specific anti-software piracy law in the country. And it is rather ironic that when the country is at a stage where it is poised to soon emerge as a software superpower, its legal framework includes no law for the redressal of those affected by piracy.
Is IT protected?
In effect the Indian Copyright Act of 1957 covers all intellectual property rights (IPR) issues. An amendment in the original Indian Copyright Act in 1994-95 brought software under its wings.
Very eloquently, the Act defines a program to mean ‘a set of instructions expressed in words, codes, and 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’. The definition by interpretation also comes to include databases.
Under the provisions of the Act, any person who knowingly makes of a pirated software use on a computer shall be punished with imprisonment for not less than seven days, which may exceed to three years and with a fine that shall not be less than Rs 50,000 and may extend to Rs 2
The amendments beyond an iota of doubt make the law, one of the toughest in the world but it does not fill the void that only a piracy specific law will. “The law is good in principle, but not good enough in reality,” says Pavan Duggal, President, CyberLaw Asia, noted Supreme Court lawyer and a cyber Law expert.
The Act: A paper tiger
What course of action does that leave for a company to take? The defaulted company can seek redressal either under the civil or the criminal provisions of the Act. Under the civil remedies, which are covered under section 57 of the Act, the companies can file for injunction and damages.
The companies can sue the defaulting organizations to restrain from selling or dealing with or doing business in pirated software. Though the damages caused to the software company are near impossible to determine the clause comes more as a deterrent rather than an instrument to claim the losses.
The civil action against a company acts more as a deterrent than anything else as it leads to impounding of pirated copies and this includes the machines on which they are installed. And impounding of computers brings the organization to a grinding halt.
“Most companies have adopted a corporate policy of using the provision as a deterrent to catch those who are using their
software for monetary gains,” says Pavan Duggal.
The NASSCOM-BSA alliance in the past has filed seven civil cases. Of these only five have been settled, that too out of the court, clearly reflecting how well the law protects the software companies.
Minimal success rates
The other recourse available is to file a criminal case under section 63 of the Act. Here the affected company can lodge a complaint with the police to initiate criminal investigations against the offender. However for all practical purposes there is not much that comes out of the same. The possibility of a conviction is next to impossible.
“The success rate of getting a conviction for a piracy offense is minimal,” says Duggal. It is the police that plays truant here. “Despite best efforts, cases are often not registered,” says Duggal. This is largely because the level of awareness and understanding of issues concerning issues pertaining to piracy is abysmally low with the police cadre.
NASSCOM Chairman, Phiroz Vandrevala, asserts the contrary, “The police have shown a commitment to tackle the problem. More than 100 anti-piracy raids have been conducted in New Delhi, Mumbai, Bangalore, Pune, Chennai, Hyderabad, Calcutta and Jaipur.” He however adds that there have been no convictions.
Where then do we go?
It is no wonder then that despite the law being in place, there has not been a dampener on the pirate’s activities. The world needs to look at India as a destination where IPR are respected. Sadly that is precisely the image that is missing.
“Small players don’t want to make their work available in India because of the piracy levels”, says Chee Chun Woei, Software Compliance and Business Development Manager, Adobe Systems Pte Ltd.
The government is sending clear signals that it will not support the menace and Karnataka decision to become a piracy-free state is a welcome step. But people like Duggal are not happy with these acts. He laments, “The political will to execute changes that protect IPR is grossly missing.”
The law that awards damages to the defaulted party is not well developed in India. The last 50 years have seen only one single case where the damaged awarded exceeded Rs 50 lakh. And sadly that had nothing to do with IPR. The problem is further compounded by the under development of laws pertaining to violation of rights of private parties. Surprisingly, this is not the case if the violation is against the government.
Time to take stock
The government needs to adopt an approach that is not only holistic in nature but also pro-corporate. And to begin with, it needs to further create awareness about what the real after-effects of the problem can be.
A gross disrespect for IPR will also lead to the software industry going the pharma way, only faster because copying and selling pirated versions come with absolutely no barriers to entry.
A specific law is long overdue for the software industry that ensures greater punishment to those who use pirated software for commercial activities. And the lawmakers and enforcers need to be a little faster in ensuring that cases are registered and the guilty party brought to book. A parallel statutory body will go a long way in helping enforce these better and faster.
A certain onus of responsibility also rests with the developers. The software companies need to fully understand the price implications is the entire issue and should price their products according to the purchasing power of the Indian customer. They also need to understand that the average educated Indian is not a pirate by choice, but one by compulsion.
Mohit Chabbra in New Delhi