Professional Documents
Culture Documents
Submitted To:
Assistant Prof. Amrita Pinak
Submitted By:
Shivani Jaiswal
B.B.A.LL.B (Hons.) VII Semester
MATS University
MATS Law School, Raipur
ACKNOWLEDGEMENT
I express my sincere gratitude to Asst. Prof. Amrita Pinak , MATS Law School, Raipur, and
owe my foremost regards to her for giving me an opportunity to carry out this project work under
herguidance. This work would not have been possible without her invaluable support and
thought provoking comments.
I would also like to thank my batch mates who directly or indirectly helped me in making
this project.
DECLARATION
I, Shivani Jaiswal, undersigned hereby declare that this research report on Piracy on the
Internet on Intellectual Property Rights compiled and submitted by me is an original work
conducted under the guidance of Asst. Prof. Amrita Pinak. It is a work done by me as a partial
fulfillment of the Bachelors degree in Competition Law. No part of this work will be published
or copied for any purpose.
Date:
Shivani Jaiswal
Place- Raipur
RESEARCH METHODOLOGY
The research methodology that I have adopted in this project is the Doctrinal Research
Methodology where the sources of the project are solely based upon the materials collected
from the websites and books. Certain other resources for our project are several Articles
collected from various journals and magazines as well as several other commentaries and digests
written and published by several eminent scholars who have excelled in various fields of the
managerial fraternity nationally and internationally.
INDEX
S.No.
Topic
Page No.
INTRODUCTION
SOFTWARE PIRACY
11
14
17
22
24
REFRENCES
25
INTRODUCTION
Internet piracy has become so popular that 70% of people claim they see nothing morally wrong
with downloading illegal music and movies.1 Unfortunately, Internet piracy is not just a moral
issue, but also a global economic and social epidemic. The more the Internet grows and expands,
the more people are nonchalant about violating intellectual property rights. 2 The purpose of
copyright is to ensure that artists, producers, studios etc. will be able to claim their profits. If
action is not taken against Internet piracy, our generation will be the last to enjoy music and other
artistic productions because studios and companies will no longer be able to support themselves.
People are less likely to invest, or buy creative works if that work can be copied and resold by
third parties.3 Intellectual property is defined as intangible property that is the result of
creativity.4 Luxembourg is very proactive with IP standards and participates in all the major IP
meetings, and attends every IP treaties and conventions such as the Bern convention and the
Patent Cooperation treaty.5
The IP- Internet nexus can be looked at from three perspectives-the author, the user and the
services provider. An author created a piece of work and register it under the existing ip laws to
enjoy certain benefits, but the digital world hinders the complete enjoyment of these rights.
Copyright owners perceive Internet as a threat to their exclusive rights due to the following
1 Online Piracy in Numbers-Facts and Statistics (info graphic), 2012; http://www.gogulf.com/blog/online-piracy/
Jum
Picht,
The
Stop
Online
Piracy
Act:
A
Cure,
2012;http://communities.washingtontimes.com/neighborhood/stimulus/2012/jan/18/stoponlinepiracy-act-cure-worse-disease/
January
18
5 Eight Annual BSA Global Software: 2010 Piracy Study, Business SoftwareAlliance Global Offices, May 2011;
http://portal.bsa.org/globalpiracy2010/downloads/study_pdf/2010_BSA_Piracy_Stud
y-Standard.pdf
reason: (i) Wide distribution is relatively simpler and quicker on the internet; (ii) Anyone can
distribute it to a mass audience; (iii) The quality of copies is virtually indistinguishable from the
original; (iv) Distribution is almost costless and (v) Users can easily and cheaply obtain
copyright on the internet.6 The Internet has become a gateway for the exploitation of other
peoples intellectual property. File sharing and illegally downloading music and movies is a
pressing issue that should be WIPOs main focus. Companies all over the world are loosing
millions every year because of Internet piracy, so legislation needs to be passed in order to
compensate for their losses.7
The growth of the size and popularity of the Internet had an overwhelming effect on software
piracy and it is regarded as possibly the fastest growing type of software piracy. The Internet
faces the same laws and license agreements as physical software distribution; no differentiation
is made between offline and online infringement in the Copyright Act.
6The impact of the internet on intellectual property law, WIPO Programs Activities,
http:/www.wipo.int/copyright/commerce (29 Novenmber 2012).
7 Nathan Douglas, Online Piracy: Combatting Theft and Censorship in theInformation Age, 2012;
https://www.ohiobar.org/NewsAndPublications/OhioLawyer/Pages/Online-piracyCombating-theft-and-censorship-in-the-Information-Age.aspx
SOFTWARE PIRACY
Software is defined as a set of instructions which when incorporated in a machine readable form
or in capable of causing a computer to perform a particular task. To put it simply, it is a series of
commands which can be understood by the machine. There are three essential types of software
which help to function the computer, micro code which is a programme which controls the
details of execution, the operating system software which controls the sources of a computer and
manages routine tasks and which is a necessary requirement for a computer to function;
application software which is designed to perform a particular task. Piracy occurs when
copyrighted software is made available to users to download without the express permission of
the copyright owner. Such illegal software is offered over online sources such as online
advertisements newsgroups bulletin board service and auction sites. Piracy hampers creativity,
hinders the development of new software and local software industry and ultimately effects ecommerce. Piracy harms consumers and has negative impact on local and national economy.
Consumers run the risk of viruses and having corrupted and defective programs.
According to Nasscom,8 software piracy involves the use, reproduction or distribution without
having received the expressed permission of the software author. Software piracy comes in four
common forms. The first is end user piracy, and it occurs when users of software install the
software on more machines than they are entitled to under their license agreements. The second
is hard disk loading, and it occurs when computer dealers install illegal copies of software onto
computers prior to their sale. The third is software counterfeiting, and it involves the illegal
reproduction, and subsequent sale of software in a form that is nearly identical to the original
product. The fourth is Internet piracy, and it occurs when individuals place unauthorized copies
of software on the Internet for download.
Punishment:
Under the Indian Copyright Act, a software pirate can be tried under both civil and criminal law.
The minimum jail term for software copyright infringement is seven days, and the maximum jail
term is three years. Statutory fines range from a minimum of 50,000 to a maximum of 200,000
rupees.
8 The National Association of Software and Service Companies
8
Some people attack the concept of software protection by arguing: Make software cheaper,
thats all. People dont copy inexpensive software, and youll sell more copies of your product.
The argument is inherently false. People who are inclined to copy software will copy the
inexpensive as well as the expensive software programs. The same people that are saying, if
software were cheaper we would buy it, are copying software that costs as little as $10. The
reality is that developing a software product requires a substantial investment of time and money,
and most software publishers simply cannot afford to lower their prices.
5. Any protection system can be cracked. Therefore, software copy protection is useless.
Only the first part of this myth is true: any software protection system can be cracked, just as any
lock can be picked or any door can be broken. However, the aim of software copy protection is
to provide protection for a reasonable period of time. Software cannot be protected forever, but it
can definitely be protected long enough (i.e., until the next version of the software product is
released). This new software version should again be protected, with a strong and field-proven
protection technology that has also been improved in parallel, thus ensuring a long and profitable
sales life for the protected software application.
10
2. Internet piracy
Nowadays, Internet piracy is one of the fastest and easiest ways to receive pirated software.
There are several websites that make software available for free download in a number of ways.
Many computer users download software from the Internet, which makes their lives easy as they
do not even need to visit stores or sending out copies of software on a CD-ROM or floppy disk.
These techniques have made our lives easier but at the same time they have also increased
internet piracy, which occurs in different forms such as downloading or uploading of illegal
copies of software over the Internet.10
3. Hard-disk loading
Hard-disk loading occurs when an individual or company sells computers preloaded with illegal
copies of software into the hard disks to encourage the consumer to buy their products. Since this
kind of activity is common, SIIA recommends computer buyers to confirm with the vendors that
software preloaded on the machines are legal and licensed copies. If the vendor is unwilling to
supply with the proper documentation, SIIA highly recommends not dealing with that vendor.11
4.
Software counterfeiting
Software counterfeiting is illegal duplication and sale of copyrighted software in such a way that
it appears to be authentic. Counterfeit software includes accompanying manuals that the original
legitimate software was sold and is usually sold at prices well below that of the retail price of the
legitimate software. This is the most typical type of software piracy and different organizations
are actively participating in stopping this kind of activity. Though counterfeit software is cheap
and easily available but it is also risky to use, since it can bring malware along with it. According
to a study, The dangerous world of counterfeit and pirated software conducted by IDC in 2013,
the chances of infection of malware from counterfeit software are 1 in 8 for consumers and 1 in 9
for businesses.12
5. Unauthorized use of academic software
Many software companies sell academic versions of their software to public schools, universities
and other educational institutions. When the software is labelled to use for academic or
educational purposes only, it cannot be used for commercial or other for-profit purposes. Using
academic software for private use in violation of the software license is a form of software piracy
and it not only hurts the software publisher, but also the institution that was the intended
recipient of the software.
6.
Renting
Renting involves someone renting out a copy of licensed software for temporary pur-poses. In
such type of piracy, software is rented to individual computers and returned the original software
to the renter. This method of piracy is not as common as other forms of piracy due to its
distribution nature but it still does exist. It has always been illegal to rent unauthorized copies of
software. The Computer Software Rental Amendments Act formed in the US in 1990 strictly
prohibits the rental, lease or lend-ing of a computer program for direct or indirect commercial
gain unless authorized by the owner of the copyright in the program.13
12 Kallol Bagchi, Peeter Kris, and Eobert Cerveny. Global software piracy: Can eco-nomic factors alone
explain the trend ? Journal of Communication of the ACM 2006;49(6):70-75. Accessed 4 December
2014.
13 Report on computer software rental act [online]. United States copyright office; 14 January 2003.
URL:http://www.copyright.gov/reports/software_ren.html.Accessed 4 July 2014.
13
14
The Berne Convention does not explicitly mention computer programs in its illustrative list of
copyright works. However, as per TRIPS, member states should recognize computer programs
(software) as literary works. Article 2 (7) of the Berne Convention makes the protection of works
of applied art dependent on domestic legislation i.e. the extent to which protection may be
granted and the conditions under which such works will be protected is dependent on the statute
of the particular country where the work originated. Works enumerated in Article 2 of the Berne
Convention are mere illustrations of the kinds of works to which copyright might extend. These
illustrations are not exhaustive. Therefore, works such as computer programs that exhibit
utilitarian characteristics and also contain expressive elements can be brought under the ambit of
work of applied art. However, Article 7 (4) of the Berne Convention exempts, inter alia, the
works of applied art from the general term of protection and sets up a minimum term of only 25
years from the making of the work. As article 2 (7) makes the protection of works of applied art
dependent on domestic legislations, the term of protection may be applicable accordingly with
respect to different countries.
3. Universal Copyright Convention (UCC):
Under the UCCs national treatment provisions, software created by a U.S. author or first
published in the US is protected in other UCC member countries to the extent that the member
countrys copyright laws protect software. The UCC provides that any member country that
requires, as a condition of copyright protection, compliance with formalities (such as
registration, deposit or notice) must treat such formalities as satisfied if all published copies of a
work bear the symbol , the name of the copyright proprietor and the year of first publication.
This provision applies, however, only to works that (i) were first published outside the country
requiring the observance of the formalities, and (ii) were not authored by one of that countrys
nationals. In contrast to Berne Convention, formalities such as registration are permitted under
the UCC in order to bring an infringement suit. India being a member to the UCC, authors of
software in US will get protection in India also as per the terms and conditions laid down in the
Indian copyright law.
4. World Intellectual Property Organization (WIPO):
15
In 1996, two copyright treaties were negotiated under the auspices of WIPO. These treaties are:
WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
The WCT of 1996 is a special agreement to the Berne Convention and requires compliance with
Berne Convention. This treaty makes explicit that computer programs are protected as literary
works under Berne Convention. It also states that compilations of data for which the selection or
arrangement of the contents are sufficiently original are protected as compilations.
16
17
Developments in this regard also took place in many other advanced countries, notably among
them being France, Germany and the USA. In France a copyright decree was adopted in 1791
which sanctioned the performing right and another decree of 1793 established authors exclusive
right of reproduction. In Germany authors rights were recognized by a Saxon Order dated Feb
27, 1686. In America the first federal law on copyright, the Copyright Law 1790 provided
protection to books, maps and charts.
COPYRIGHT IN INDIA
The copyright in India has travelled a long way since it was introduced during the British rule.
The first law on copyright was enacted in the year 1847 by the then Governor General of India.
When Copyright Act 1911 came into existence in England, it became automatically applicable to
India, being India an integral part of British Raj. This act was in force in the country until after
independence when a new copyright act (the Act of 1957) came into effect in 1958. Thereafter
the Act has undergone many amendments. The latest in the series is the 1994 Amendment, which
came into force in May 1995.
The Indian Copyright Act confers copyright on (i) original literary, dramatic, musical and artistic
works, (ii) cinematographic films and (iii) sound recordings. The word `original' means that it
should not be copied from other works or alternatively it should be the outcome of independent
efforts. The Act empowers copyright holder(s) to do or authorize doing a number of activities.
The important among these are:
a)
b)
c)
d)
e)
f)
g)
The above mentioned rights are `exclusive' in the sense that the creator (or right holder) alone
has the right to enjoy these to the exclusion of others. The author by virtue of his creation
becomes the `owner' of the copyright in the work. However, there can be exceptions to this as in
the following two cases:
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a) The creator may be employed by someone and having been employed to create a work,
the rights belong to the employer - not the creator(s), and
b) The creator may transfer his copyright by a document in writing to another person. This
is known as assignment.
The grant of copyright is a limited monopoly. It is limited in the `scope' of the rights granted and
in terms of `time'. In India, copyright on a literary work is provided for the lifetime of the author
plus sixty years after his death. In case of joint authorship, the sixty years period is calculated
from the beginning of the calendar year following the year in which the last (surviving) author
dies. Copyright with respect to photographs, cinematographic works and sound recordings spans
for 60 years of its first publication. In order to strike a balance between the society's need for
access to knowledge and the need to rewarding creators, limited uses of copyright protected
works are permitted without authors consent. These are called `fair use' of copyright. Section 52
of Indian Copyright Act permits certain activities which do not amount to infringement.
Important in this `exception list' are reproduction of literary, dramatic, musical or artistic works
for educational purposes, e.g. research, review etc., and reporting in newspapers, magazines and
periodicals etc.
The Copyright Act of India provides right holders a dual legal machinery for enforcing their
rights. The enforcement is possible through (1) the Copyright Board and (2) the courts. Legal
remedies include imprisonment and/or monetary fines - depending upon the gravity of the crime.
Sometimes remedies also include seizure, forfeiture and destruction of infringing copies and the
plates used for making such copies. The 1984 amendment has made copyright infringement a
cognizable non-bailable offence. Under the provisions of the Act any person who knowingly
infringes or abets the infringement of copyright is considered as an offender and is punishable
with a minimum of six months imprisonment which may extend to three years and a fine
between fifty thousand and two lakhs rupees. The 1994 Amendment has incorporated a special
penal provision for knowingly using an infringing computer software.
The punishment provided for this act is imprisonment for a term of seven days to a maximum of
three years and a fine between fifty thousand and two lakh rupees. In case the infringing copy of
the computer software is used not for pecuniary gain or in the course of trade or business, the
imprisonment can be relaxed and fine can be maximum of fifty thousand rupees. Besides
19
amending the Copyright Act the Indian Government has taken few more steps in strengthening
the enforcement in the country. A Copyright Enforcement Advisory Council has been set up for
advising the Government on measures for improving the copyright enforcement. Training
programmes and seminars are arranged for police personnel. Necessary legislation was made for
bringing video shops, cable operators under regulation. State governments are encouraged to set
up IPR cells for exclusively dealing with copyright and other IPR violations. In spite of all these,
enforcement of IPR violations, particularly copyright violations has not been strong enough in
the country and piracy prevails exits in all types of copyright works notably musical works,
video films and software.
Copyright Piracy
Copyright piracy is a phenomenon prevalent worldwide. Piracy means unauthorized
reproduction, importing or distribution either of the whole or of a substantial part of works
protected by copyright. The author of a copyrighted work, being the owner, enjoys certain
exclusive rights with respect to his or her works. These include right to reproduce, to publish, to
adopt, to translate and to perform in public. The owner can also sell, assign, license or bequeath
the copyright to another party if he wishes so. If any person other than the copyright owner or his
authorized party undertakes any of the above mentioned activities with respect to a copyrighted
product, it amounts to infringement of the copyright. Copyright piracy is thus like any other theft
which leads to loss to the owners of the property. Besides economic loss, piracy also adversely
affects the creative potential of a society as it denies creative people such as authors and artists
their legitimate dues.
There are different ways through which piracy takes place with the help of internet by using the
software. A computer software is pirated by simply copying it onto another machine not
authorized for its use. Book piracy takes place when a book is reproduced by someone other than
the real publisher and sold in the market or the internet. A performer's right is violated when a
live performance of an artist is recorded or telecasted live without his/her permission. In a
cinematographic work piracy generally takes place through unauthorized reproduction of the
film in video forms and/or displaying the video through cable networks without taking proper
authorization from the film producer (the right holder). In fact, there are numerous other ways
20
through which piracy of copyrighted works take place with the help of software. The nature and
extent of piracy also vary across the segments of the copyright industry.
21
22
such a statement, it carries some political weight and can be used to persuade the government to
participate pro-actively against software piracy.
Pro-active Software Asset Management
NASSCOM is also working with various major corporates to have corporate software policy,
which will allow people to manage their software better. Special seminars on Software Asset
Management have been organized wherein international consultants have made presentations to
the corporate users on how to frame their software policy. NASSCOM-BSA also launched
Software Asset Management Seminars in different parts of the country viz. Bangalore, Chennai,
Delhi and Mumbai.
Self-Audits
Both corporate as well as home users should check if their software is original. They should also
check whether the software being used on their PCs and servers complies with the terms of the
End User License Agreement. Users have the choice of procuring the required licenses for the
software they use from vendors or their authorized distributors in their country.
23
CONCLUSION
This study provided an overview of software piracy and helped a deep understanding of the
topic. Software piracy can be argued as a consequence of technological innovation and the need
to protect those from their unauthorized reproduction remains an important objective for
copyright owners. Recently, the director of World Intellectual Property Organization
14
observed,
copyright must be developed to meet the development of new technologies otherwise it will
become irrelevant on the theory and practice. So there is need to changes in law as per the nature
of piracy whether it is internet piracy or software piracy both piracy belongs into same footing.
Nowadays, stealing legitimate software is an easy and simple activity. People rarely
consider that stealing software is a criminal act, but it is. Software programs are protected under
the copyright law and they become copyrighted as soon as they are created. Distributing and
misusing of copy-righted software is considered a criminal act and those performing such
activities are subjected to paying fines with criminal proceedings. Moreover, there is also a risk
of spreading malware from the pirated software.
14 Francis Gurry spoke for the future of copyright at a conference, held at the Queensland University of
Technology,Australia, March 3, 2011.
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REFRENCES
Exploratory Study of the Effects of Individual And Peer Beliefs, Omega, 25(3); 335-44.
Business Software Alliance (n.d., b), Internet Software Piracy Fact Sheet, Available on
http://www.bsa.org/ireland/antipiracy/upload/Internet-Piracy-Factsheet.pdf
Business Software Alliance (n.d., a), Software Piracy and the Law Software Piracy in
the United States, Available on http://www.bsa.org/resources/upload/Software-Piracy-
and-the- Law.pdf
What is Software Piracy: The Piracy Problem http://www.siia.net/piracy/whatis.asp
The National Association of Software and Service Companies
http://www.copyright.gov/wipo/
http://www.nasscom.org
25