The other day I was just walking on the road trying to get somewhere when someone just handed me this pamphlet which stated that the coaching centre was providing some kind of training to get a hang of this particular software at a certain fee. I passed it on to one of my friends who I thought might be interested in taking up the course. That is when I was told that this can’t be legit as the actual course costed twice the amount.

A few days later, I happened to read this judgment here the facts of which I could completely relate to. The plaintiff, SAP AKTIENGESELLSCHAFT, a German establishment that offers enterprise resource planning (ERP) software that facilitates back-office functions like distribution, accounting, human resources and manufacturing. Its software is used by 35,000 companies around the globe and mainly focuses on small and midsized customers and naturally in order to understand the functionality of the software, people would have to undergo training and coaching. For this reason, the German company had tied up with around 57 entities in India as their education partners for imparting the training programme of their software.

One of their partners in India came across the defendant’s services and passed on the information to the plaintiff in or around September 2008. Upon conducting enquiries they came to know that the defendant was conducting unauthorized training programmes for a fee much lesser than the actual fee that the plaintiff charged (around Rupees 1.2 lakhs lesser). They lodged a criminal complaint against the defendant subsequent to which the police recovered and seized hard disks, servers, containing pirated software SAP R.3 release 4.6B of the plaintiffs, SAP Brochures, SAP Study materials, record book of SAP certificates issued to the students, 12 nos. of SAP loaded CDs, which were being used for providing training on SAP software. This judgment clarifies many questions, some of which are as follows;

Computer programme as copyright:

Software programmes are “computer programmes” within the meaning of Section 2(ffc) of the Copyright Act, 1957 and included in the definition of a literary work as per Section 2(o) of the Act. The computer programmes and the supplementary user instruction Manuals supplied by the plaintiffs are ‘original literary works’ as contemplated under Section 2(o) and Section 13(1) of the Act. The plaintiff’s software was first published in Germany; since both India and Germany are part of the Berne Convention as well as the Universal Copyright Convention, the plaintiff’s work is protected as copyright in any of the member countries.

Section 14 of the Act further lays down the exclusive rights that flow from being an owner of a work which includes among other things right to reproduce, distribute, make copies, additional right to (for computer programme) to sell or give on commercial rent the commercial programme. Since the defendant was not authorised to do any of the above acts, the Court was of the opinion that the acts of the defendant constituted as infringement of the copyright of the plaintiff’s computer programmes.

Despite computer programmes being recognized under the act, its scope largely remained untested by the Courts, until now. The Court did go into the whole analysis of literary and non-literary work being part of the plaintiff’s software programme, that which may or may not be protected under copyrights. Maybe that is because the facts of the particular case seemed pretty clear. The defendant had pirated copies of the plaintiff’s software along with manuals and were gaining out of it.

Software piracy in India:

Before concluding this post, I would like to touch upon this rather sensitive issue which is rampantly increasing in India. There is no denying that the software industry is one of the fastest growing in India as it does not have many barriers for entry and is a low cost and intellect intensive industry. With the increase in the development of the software industry, the piracy of the software is increasing at an equally proportionate rate. Software piracy is what happened in the case that I have discussed above. That kind of piracy broadly falls under “software counterfeiting” though there is no sale of the product as such but the defendant has nevertheless gained commercially out of it.

The other kinds are end-user piracy, where the user installs the software on more than one machine, hard-disk loading where the computer dealers installs illegal copies of software onto the computer before selling it and Internet piracy is when unauthorised copies are placed on the internet by individuals for download. Software piracy in India is both a civil and a criminal act for which the person pirating can not only be fined but can also be imprisoned.

Despite there being stringent laws to prevent software piracy in India, this doesn’t seem to be happening as there isn’t enough awareness about the repercussions of such acts and the general mind set of people is that the big companies aren’t going never going to find out about their small business! Well, time to rethink I would say.

This article has been authored by Durga Bhatt, an IP Law practitioner.