| . |
The recent raid on Radiant Software in Chennai and Bangalore by EIPR (Enforcers of Intellectual Property Rights) at the behest of Oracle Software India Ltd, has brought the issue of Copyright on software to the focus. According to today's press reports, the case has been filed against Radiant under Sec 420 of IPC. It is also reported that the infringement has arisen because the license possessed by Radiant was an "User License" and not a "Commercial License" which was required for its usage in the training system. If these reports are correct, this is not a case of "pirated" software as was reported yesterday, but a case of violation of the terms of license. The issues that arise out of the case are
The Copyright Act 1957 was amended last year to include the rights on Computer Programmes. Under section 14 of the Act, the meaning of "Copyright" on a Computer Programme includes reproducing in any form including storing in any medium by electronic means,as well as "to sell" "to rent" etc. These provisions effectively cover "Piracy" of software which involves "Copying" and "Selling". Under Sec 51, of the Act "Copyright Infringement" has been defined to include violation of the terms of license if any. Using of a Computer programme for the purpose for which it was supplied is however a "Fair use" of the material and doesnot constitute "Infringement". In the instant case it appears that the license was a restricted license for "own use" and not for "Training". However if Radiant's business itself is "Training", it may be presumed that the only use that Radiant can make for its own purpose is its use in "Training". Probably, Oracle has sold a wrong license to Radiant, by selling the license meant for Software developers. One has to go behind the purchase correspondence to understand whether the seller had made a reasonable disclosure of the "Restrictions" of license or left it for the "Fine Print" to explain. If Radiant had disclosed in its communication that it is a "Software Training Company", there would have been a reasonable ground for Oracle to believe that the software would be used for training purpose and not for application development. (If however the software has been pirated, the issue would be different.) The violation of license terms is therefore a delicate issue capable of being argued with reference to other extraneous matters that may constitute "Implied licensing". Since Copyright Act specifically provides for remedy against infringement, it is not clear whether it was appropriate to invoke the IPC and more particularly Sec 420 (If the report is correct). Another aspect of academic interest is under what authority Oracle claims the Copyright. Does the Copyright belong to Oracle Corporation of USA? or to its Indian Company? If it belongs to the USA Company, probably Sec 13 excludes it from Indian Copyright Act. In such a case one has to look for the Digital Millennium Copyright Act of USA (DMCA) to trace the rights of Oracle. The rights under the DMCA are perhaps exercisable in India only through the operation of Berne Convention and WIPO Copyright treaty. Lastly, one can wonder what can be the remedy for Oracle against the alleged infringement. The Conventional remedy for Copyright violation is "Compensation of loss". The "Penalty" clauses may be applicable at the discretion of the Courts. These include fines upto Rs 50000 and imprisonment upto 3 years. Under the DMCA, imprisonment can go upto 5 years and fine may extend upto Us $ 500000/-. Of course if conviction is under Sec 420, imprisonment can go upto 7 years. It appears that in the instant case, perhaps only the civil remedies, ie, compensation for loss or damage suffered by the owner alone would be applicable. Since this requires a prolonged legal battle, it is doubtful whether the matter would be fought to the logical end. Perhaps it may be in the interest of both the parties to settle the dispute out of court. Will then all the commotion created by the Police and the Media turn out to be an over reaction? Let's wait and watch. Naavi
|
. |