Section 2(o) defines literary work and includes computer programs , tables and compilation of computer databases. Generally, it is the author of a work , who is the first owner of copyright in the work. But, tables turn when under an employer-employee relationship, any work made in the course of employment under a contract of service or apprenticeship, the employer becomes the first owner of the copyright unless there exists a contrary agreement, as per section 17 of the Indian Copyright Act. Therefore, these provisions of the copyright law are applicable mutatis mutandis to computer software/programs as well.
The provisions, on the other hand, to govern software contracts like many transactions, is the common law principal, laid down in Indian Contract Act, 1872. Since a contract can be in the notice of sale or assignment/license ; if computer software is considered as a ‘good’ the formation and execution of the sale contract will be under the Sale of Goods Act,1930. The term ‘good’ as per section 2(7) of the Sale of Goods Act, 1930 has been defined as ‘every kind of movable property other than actionable claims and money and includes stock, shares, growing crops, grass etc. Thus, this definition includes all types of movable properties , whether tangible or intangible.
In the case of Tata Consultancy Services v. State of Andhra Pradesh, the Supreme Court laid down the criteria for an object to be considered as ‘good’ under the intellectual property law. It states that it would become as a ‘good’ provided it has an attribute with regards to :
(1) its ability (2) capable of being bought and sold (3) capable of being transmitted, delivered, stored and possessed.
Therefore, if a computer software, whether customized or non-customized, satisfies these attributes, it would be considered as goods. Thus, the Apex Court in this case, held that a computer software as an intellectual property, whether it is conveyed in diskettes, floppy, magnetic tapes or CD-ROM, canned (shrink wrapped) or uncanned (customized); whether it comes as a part of computer or is independent, whether it is branded or unbranded, tangible or intangible ; is capable of being transmitted, transferred , stored , processed etc. and thus, is a ‘good’ liable to sale tax.
The copyright Act provides under its section 51, that if a person unauthorizedly commits any act which only the copyright holder has exclusive rights to do, it will amount to copyright holder has exclusive rights to do, it will amount to copyright infringement. Chapter XII of the Copyright Act, 1957, contains civil as well as criminal remedies in case of copyright infringement. As far as computer software is concerned , a person who knowingly makes use of the infringing copies of Computer Software, commits a criminal offence punishable with imprisonment, for not less than 7 days, which is extendable up to 3 years and a fine not less than Rs. 50,000 up to Rs. 2,00,000. Moreover, as a civil remedy, section 62 of the Act provides the plaintiff with the right to file an injunction against infringements within the jurisdiction of the District Court, where a plaintiff resides or carries on business or works for gain. Also, like the USA, India adopted the John Doe order, which is a principal of accepting petitions against unknown persons in defamation cases or intellectual property infringements including cases relating to software for piracy.