A pamphlet handed to me on the street offered training on a well-known enterprise software at a suspiciously low fee. A friend pointed out the real course cost twice as much. A few days later I read a judgment with almost exactly those facts.
The case
The plaintiff, SAP Aktiengesellschaft, is a German company offering enterprise resource planning (ERP) software supporting back-office functions — distribution, accounting, human resources, manufacturing — used by some 35,000 companies worldwide, focusing on small and midsized customers.
Understanding the software requires training, so the company had tied up with around 57 education partners in India to deliver its training programme.
One partner came across the defendant’s services and alerted the plaintiff around September 2008. On enquiry, the defendant was found to be running unauthorised training programmes at a fee roughly ₹1.2 lakh below the plaintiff’s.
A criminal complaint followed, after which police recovered and seized hard disks and servers containing pirated software, along with brochures, study materials, a record book of certificates issued to students, and 12 CDs loaded with the software, all used to provide training.
Software as copyright subject matter
The judgment settles several points cleanly:
- Software programmes are “computer programmes” within Section 2(ffc) of the Copyright Act, 1957, and are included within the definition of a literary work under Section 2(o).
- The computer programmes and the supplementary user manuals supplied by the plaintiff are original literary works under Section 2(o) and Section 13(1).
- The software was first published in Germany. Since both India and Germany are parties to the Berne Convention and the Universal Copyright Convention, the work is protected in India as it would be in any member country.
Section 14 sets out the exclusive rights of the owner — including the right to reproduce, distribute and make copies, and, specifically for a computer programme, to sell or give it on commercial rent. The defendant being authorised to do none of this, its acts constituted infringement.
Although computer programmes had long been recognised under the Act, the scope of that protection had remained largely untested in the courts. The court did not need to work through which literary and non-literary elements of a software programme attract protection — the facts made that unnecessary. The defendant held pirated copies of the software and manuals and was profiting from them.
The forms software piracy takes
Software is among India’s fastest-growing industries — low barriers to entry, low cost, intellect-intensive — and piracy has grown proportionately.
What happened here falls broadly under software counterfeiting: there was no sale of the product as such, but the defendant nevertheless gained commercially from it. The other common forms are:
- End-user piracy — installing software on more machines than licensed;
- hard-disk loading — dealers installing illegal copies before selling a computer; and
- internet piracy — unauthorised copies placed online for download.
Software piracy in India is both a civil and a criminal wrong: an infringer can be fined and imprisoned.
Why enforcement still lags
Despite reasonably stringent law, enforcement remains patchy — largely because there is insufficient awareness of the consequences, and a general assumption that large companies will never notice a small operation.
This case suggests otherwise, and shows how these matters actually come to light: not through the rights holder’s own monitoring, but through an authorised partner noticing a competitor undercutting the official price by an implausible margin. A licensing network is also a detection network, and the price gap is usually the tell.
The criminal complaint route is worth noting too. It produced a search and seizure that secured the servers, materials and certificate records — evidence that would have been considerably harder to obtain, and easier to destroy, through a civil suit alone.
The takeaways
- Computer programmes are literary works under Sections 2(ffc) and 2(o).
- Foreign software is protected in India through the Berne and Universal Copyright Conventions.
- Section 14 rights include commercial rental — specific to computer programmes.
- Piracy is civil and criminal — the criminal route secured the evidence here.
Frequently asked questions
Is software protected by copyright in India? Yes — computer programmes are literary works under Sections 2(ffc) and 2(o) of the Copyright Act, 1957.
Is foreign software protected in India? Yes — through India’s membership of the Berne Convention and the Universal Copyright Convention, works first published in other member countries are protected here.
What counts as software piracy? Counterfeiting, end-user piracy (exceeding licensed installations), hard-disk loading by dealers, and internet piracy through unauthorised downloads.
Is software piracy a criminal offence in India? Yes — it attracts both civil and criminal liability, with fines and imprisonment available.
Useful official resources
- The Copyright Act, 1957
- Copyright Office, India