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Software needs a stronger IPR regime

Vipin Agarwal | Updated on January 23, 2018

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Software piracy needs at least the same level of legal protection as music and films. It is a serious cyber security threat



In the past few decades, India has emerged as a major hub for innovation in product research and development across sectors. India’s software industry has grown tremendously with a strong focus on developing research-driven products and applications. Several MNCs have set up innovation labs and R&D centres in the country.

As India’s contribution to the creation of intellectual property (IP) in technology grows, there is a need for stronger IP protection to encourage indigenous innovation.

Key challenges

Rampant piracy is one of the key challenges faced by the software industry. According to the BSA Global Software Survey 2014, 60 per cent of software installed on PCs in India in 2013 was not properly licensed. This level of piracy not only undermines the growth of the industry, it leads to potential cyber security risks and productivity losses.

The Goondas Acts which recognises the link between piracy and organised crime has been passed by a number of States.

However, we need a similar act that protects the interests of the software industry. These statutes tend to focus more on music and film piracy and exclude software piracy. To give it an equal footing with other IP crimes, software piracy should be included under State Anti-Piracy Acts. In addition, various legislations related to copying, duplicating, selling and distribution, giving on hire or rental, and importing and exporting of pirated or unlicensed software should be brought under the State Anti-Piracy Acts.

Measures also need to be taken to address some gaps in the Indian copyright law; its scope also needs to be widened. In its current form, the law does not deal with issues such as statutory damage, compounding of offences, and temporary reproduction.

Currently, the power of compounding the offence of criminal copyright infringement is provided neither in the Criminal Procedure Code nor in the Copyright Act. To enable speedy and logical conclusion of criminal copyright infringement cases the law must be amended specifically to provide for the compounding of such offences as a matter of right.

Additionally, while the Indian copyright law covers reproductions, it should expressly recognise permanent and transient reproductions.

While software per se is not considered patentable in India, it is important to give functional protection to it. There needs to be clarity in the interpretation of Section 3(k) of the Indian Patents Act on what is patentable.

Licensed software

Although government departments are currently encouraged to use licensed software, there are no concrete procedures to ensure that only licensed software is used.

The use of software that is not properly licensed not only exposes the government to risks related to the violation of IPR but also increases its vulnerability to cyber-security threats.

Licensed software is not as vulnerable to cyber-attacks as unlicensed software.

The government should issue guidelines mandating all government departments to use licensed software and ensure that it is managed by using internationally recognised standards on software asset management (SAM) processes.

Concerted and focused awareness campaigns need to be run to sensitise various stakeholders, including businesses, judiciary and enforcement agencies, academic institutions, and general public on protection of IPR rights. A free market with a level playing field for all those dealing with IP will help stimulate innovation, in particular in the domestic IT sector.

Strengthening IPR increasingly contributes to technology transfer and increased rates of innovation. Licensed software not only improves operational efficiency for businesses and reduces costs, it also offers a huge return on investments, especially in developing economies.

While India has a fairly robust legal IP framework compared to other global markets, there is room for the government to improve the enforcement of these laws.

A cohesive national policy will be crucial as local Indian innovators increasingly seek protection for their work both in India and abroad.

A globally harmonised system will augur well for the domestic and international industries.

The writer is the India Chair for BSA, The Software Alliance

Published on May 06, 2015

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