Software has two homes in Indian intellectual property law. The code lives in copyright, automatically and for a very long time. The idea behind it — what the program does and how — lives in patent law, if it lives anywhere. This guide is about the first: what copyright gives a software owner, how to secure it, and how to enforce it.
Quick reference
| Protected as | A literary work, from the moment the code is written |
| Covers | Source code, object code, and the structure and expression of the program; the manuals and the interface artwork as separate works |
| Does not cover | Functionality, algorithms, ideas, methods, file formats as such |
| Owner | The employer for employee code; the contractor for contractor code, unless assigned |
| Registration | Optional; requires extracts of source and object code |
| Criminal | Knowingly running an infringing copy is an offence |
What is protected
The Act treats a computer programme — a set of instructions capable of causing a computer to perform a task — as a literary work. Copyright arises when the code is written and lasts for the author’s life plus sixty years, or sixty years from publication for a company’s anonymous work. It covers the code in any form, source or compiled, and copying includes storing it electronically, so installing, running from a copy or loading into memory are all reproductions.
The protection is against copying the expression. A competitor who takes your code, or a substantial part of it, infringes. A competitor who writes new code that does the same thing does not, because functionality, algorithms, methods of operation and ideas are not protected. Screen layouts and interface artwork are artistic works and protected as such; the “look and feel” as a concept is not. Data formats and APIs occupy contested ground, and Indian courts have not settled where the line falls.
Who owns it
The default rule and its exceptions produce a simple table for software:
- Employees — code written in the course of employment under a contract of service belongs to the employer, unless the contract says otherwise.
- Contractors, freelancers, agencies, outsourcing vendors — code belongs to the contractor unless assigned in writing. Software is not among the commissioned works whose ownership passes to the person who paid.
- Founders — pre-incorporation code belongs to the founder until assigned to the company.
- Open-source components — belong to their authors and come with licence conditions that bind whoever incorporates them.
Every software company should have written assignments from every contractor and founder, and an open-source inventory. Investors and acquirers ask for both.
Registration
Registration is optional and useful as evidence. The application is made to the Copyright Office as a literary work, with a copy of the source and object code. In current practice the Office asks for the first and last ten pages of source code, or the whole if it is shorter than twenty pages, and does not accept redaction of those pages; trade-secret portions should be kept out of the extract by choosing the pages accordingly. Registration proceeds through examination, objections if any, and entry on the Register, and the certificate is prima facie evidence of the particulars.
For software that changes constantly, register the major versions, not every build.
What users may do
A lawful user may make a backup copy; make copies needed to use the programme for the purpose it was supplied; reverse-engineer for interoperability where the information is not otherwise available; test the programme’s functioning; and, for non-commercial personal use, make copies from a personally, legally obtained copy. Beyond those, the exceptions for research, criticism and reporting do not apply to software, so a use outside the list needs a licence.
Infringement and remedies
Civil remedies are the standard ones: injunction, damages or an account of profits, delivery up. In software cases the interim stage often includes an order appointing a local commissioner to visit the defendant’s premises and take copies of what is installed — the Indian version of the Anton Piller order — because the evidence would otherwise vanish.
Knowingly using an infringing copy of a computer programme on a computer is a separate criminal offence: seven days to three years’ imprisonment and a fine of ₹50,000 to ₹2 lakh, with the court able to impose a fine alone where the use was not for gain. Circumventing technological protection with intent to infringe is another offence. The ordinary infringement offence, with police seizure powers, applies as well. Software audits backed by these provisions are a routine enforcement tool against unlicensed corporate use.
Licensing
Because copyright is what the customer is buying, the licence is the product. A software licence should say what is licensed, to whom, on how many installations or users, for what term, whether source is included, what the customer may modify, and what happens on termination. SaaS agreements licence access rather than copies, and the copyright analysis is different: the customer never reproduces the code. Open-source licences are licences like any other, and breaching their conditions — attribution, share-alike, patent grants — is infringement.
Where a patent fits
Copyright stops copying of the code. It does not stop a competitor building the same product from scratch. The only protection for what the software does is a patent, and India grants patents to software-implemented inventions that make a technical contribution — with a significant exclusion for business methods and for programs as such. The two rights are complementary: copyright is automatic and protects the investment in the code; a patent is expensive and uncertain and protects the idea. There is a separate guide to software patents.
Frequently asked questions
Is software protected by copyright in India? Yes, as a literary work, automatically from the moment the code is written. Protection covers the code and its expression, not the functionality or the ideas behind it.
Who owns software written by a contractor? The contractor, unless the code is assigned to the client in writing. Paying for development does not transfer copyright.
Do I need to register software copyright? No, but registration provides prima facie evidence of ownership. The application requires extracts of source and object code — in current practice the first and last ten pages, or the whole if shorter — without redaction.
Can I reverse-engineer software in India? For interoperability, where the necessary information is not otherwise available, and for testing the programme’s functioning, yes. Reverse engineering to copy the program is not permitted.
Is using pirated software a crime in India? Yes. Knowingly using an infringing copy of a computer programme carries seven days to three years’ imprisonment and a fine of ₹50,000 to ₹2 lakh, with a fine alone possible where the use was not for gain.
Does copyright protect my software’s functionality? No. A competitor who writes independent code to achieve the same result does not infringe copyright. Functionality can be protected, if at all, by a patent.
Useful official resources
- Copyright Office, India — e-filing and the requirements for computer programmes
- IP India — patents — for the patent side
See our related notes on who owns copyright, software patents in India, copyright registration and copyright licensing.
Contractor code never assigned, or a competitor’s product that looks too familiar? Talk to us.