Licence Compliance of software products

A V Vishal (Advocate) 16 May 2009

Dear Krishnamoorthy,

In most cases a business to business
Software License is non-exclusive, non-transferable, revocable and for restricted only. The grantor/licensor of a non-exclusive license retains with him the right of license the same software to other firms/licensees as well without any restriction. The non-transferability clause in the license puts a bar against sublicensing the software by the licensee as a sub-licensor in competition with the original licensor. Restricted use of the software entitles the licensee only the normal use and operation of the software in connection with his single computer and cannot sell or rent the same software to other firm or for other use. Although a software license is generally not irrevocable, but a licensee may insist that the license be irrevocable so long as the license fees are paid and all other terms and conditions and restrictions are duly complied with.use

A V Vishal (Advocate) 16 May 2009

Dear Krishnamoorthy,

Sorry that is incomplete, further, you can enforce compliance of the license under the Intelluctual Property Act.

Saifullah.C (Advocate,Chennai) 17 May 2009

Sir, I have gone through your query.the following Act is enacted to dealt with any violation in software license compliance.

In India, the Intellectual Property Rights (IPR) of computer software is covered under the Copyright Law. Accordingly, the copyright of computer software is protected under the provisions of Indian Copyright Act 1957. Major changes to Indian Copyright Law were introduced in 1994 and came into effect from 10 May 1995. These changes or amendments made the Indian Copyright law, one of the toughest in the world.

The amendments to the Copyright Act introduced in June 1994 were in themselves, a landmark in the India's copyright arena. For the first time in India, the Copyright Law clearly explained:

the rights of a copyright holder
position on rentals of software
the rights of the user to make backup copies
and most importantly the amendments imposed heavy punishment and fines for infringement of copyright of software.

Because most software is easy to duplicate and the copy is usually as good as original, the Copyright Act was greatly in demand. According to this Act, the infringer can be tried under both civil and criminal law.

According to section 16 of this Act, it is illegal to make or distribute copies of copyrighted software without proper or specific authorisation. The only exception is provided by section 52 of the Act, which allows a backup copy purely as a temporary protection against loss, distribution or damage to the original copy. The 1994 amendment to the Copyright Act also prohibits the sale or hiring, or any offer for sale or hire of any copy of the computer program without specific authorisation of the Copyright holder.

A civil and criminal action may be instituted for injunction, actual damages (including infringer's profits) or statutory damages per infringement etc. With these amendments, even the criminal penalties have substantially increased. Section 63 B, stipulates a minimum jail term of 7 days which can be extended up to 3 years. The Act further states the fine ranging from Rs. 50,000 to 2,00,000.I hope that your query is answered.

S. Krishnamoorthy (Business) 18 May 2009

Dear Shri Saifullah,

I am most grateful for your lucid presentation on the licence compliance of software products.

I have a dobut whether the Copyright Act empowers the software product manaufacturer to send his auditors to a client's premises on the false assumption or apprehension that the client is using many of his products without licence (i.e., using pirated or copied versions). I shall be grateful for your profound clarification.

S. Krishnamoorthy

Saifullah.C (Advocate,Chennai) 18 May 2009

The Right holder of a computer software who is aggrieved by a software infringement can give a complaint before the designated Police (Crime) who is deputed to handle copy right infringement/ software piracy along with substantial evidence amounting to infringement of copyright in the software.

The concerned Police officer based on the complaint. can invoke Sec 64 of the Act which empowers the police to search and seizure of infringing copies the auditors of the manufacturer can also accompany with the Police officer and can enter in to the premises.

64. Power of police to seize infringing copies . -(1)Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable, be produced before a Magistrate.]

(2) Any person having an interest in any copies of a work [or plates] seized under sub-section (1) may, within fifteen days of such seizure, make an application to the Magistrate for such copie.[or plates] being restored to him and the Magistrate, after hearing the applicant and the complainant and making such further inquiry as may be necessary, shall make such order on the application as he may deem fit.

The Right holder (manufacturer) can also file a private complaint before the Magistrate by invoking Sec 70 of the Act

70. Cognizance of offences. - No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class] shall try any offence under this Act.

Civil Remedy

The Right holder can also file a civil suit before the competent Court for interim order to restrain the defendant from making pirated copies and also get other consequential relief’s.

63. Offence of infringement of copyright or other rights conferred by this Act. Any person who knowingly infringes or abets the infringement of-

(a) the copyright in a work, or

(b) any other right conferred by this Act, [except the right conferred by section 53A]

[shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees :

Provided that [where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.]

Explanation.-Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.

Amit Kumar (Advocate) 05 June 2009

To add to the above...

To report piracy... you can also lodge complaint with Business Software Alliance (BSA). BSA has offices all around the world and is authorized by most of the big companies like ADOBE, SAP, Apple, DELL, Microsoft, etc to conduct raids against Software Piracy... and they are very actively carrying out the responsibility.

visit here: https://www.bsa.org/

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