Infringement of Software Copyright, and the Exceptions

In one line

Copying software without a licence infringes; but a lawful possessor may make a back-up, may decompile for interoperability, may study how it works, and may copy a legally obtained copy for personal use.

In the wording a student can write in an exam: section 51 of the Copyright Act, 1957 deems copyright infringed when a person without a licence does anything the exclusive right to do which is conferred on the owner, or permits a place to be used for profit for an infringing communication, or makes, sells, lets for hire, distributes, exhibits in trade or imports infringing copies; section 52(1)(aa) to (ad) exempt the making of back-up copies and copies necessary for use, acts necessary for interoperability, observation study and testing to determine underlying ideas, and copying for non-commercial personal use from a legally obtained copy; section 63 makes knowing infringement an offence; and sections 65A and 65B, inserted in 2012, protect technological measures and rights management information.

Section 51: when copyright is infringed

Section 51(a)(i): copyright is infringed when any person, without a licence granted by the owner or the Registrar of Copyrights, or in contravention of the conditions of a licence so granted, does anything the exclusive right to do which is conferred by the Act on the owner.

Two limbs there and both matter for software. Doing an exclusive act without a licence. And doing it in contravention of the conditions of a licence, which is what a licensee who exceeds its permitted number of installations does.

Section 51(a)(ii): permitting for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement, unless he was not aware and had no reasonable ground for believing that the communication would infringe.

Section 51(b) covers dealing in infringing copies: making for sale or hire, selling or letting for hire, displaying or offering for sale or hire by way of trade, distributing for trade or to an extent prejudicial to the owner, exhibiting in public by way of trade, and importing into India. The proviso permits the import of one copy for the private and domestic use of the importer.

Applied to software the two commonest infringements are these. Installing more copies than the licence permits, which is section 51(a)(i) read with section 14(a)(i) and, if the licence caps installations, also the second limb of section 51(a). And distributing copies, which is section 51(b).

Section 52(1)(aa): back-ups and copies necessary to use

"The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme, from such copy (i) in order to utilise the computer programme for the purpose for which it was supplied; or (ii) to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilise the computer programme for the purpose for which it was supplied."