IPR and information technology: online piracy of computer programmes and its modes
Law of Intellectual Property and Information Technology · Unit IV · Topic 7 of 12 · 6 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. The relationship between IPR and IT
The two interact in three directions.
- IT creates new subject matter for IP: computer programmes, databases, semiconductor layout designs, digital content, domain names, and now AI models and outputs. Law has had to choose a regime for each, usually stretching an old one (copyright for software and databases) and sometimes inventing a new one (the EU database right; the Semiconductor Integrated Circuits Layout-Design Act, 2000).
- IT makes infringement easier: perfect copies at no cost, worldwide distribution, anonymity.
- IT also enables enforcement: digital locks (technological protection measures), watermarks and rights management information, licence keys and online activation, content recognition systems on platforms, and website blocking. Lessig’s point that code regulates applies here (Unit I).
Peter Drahos and John Braithwaite, in Information Feudalism: Who Owns the Knowledge Economy? (2002), argue that the expansion of IP in the information economy, driven by a small number of corporations through TRIPS, transfers knowledge from the public into private hands. The book is on the KSLU reading list and is the standard critical source for this unit.
2. What software is in law
- Copyright: a computer programme is a literary work (section 2(o)) defined in section 2(ffc) as a set of instructions expressed in words, codes, schemes or any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.
- Goods: in Tata Consultancy Services v. State of Andhra Pradesh, 2004 INSC 643, the Supreme Court held that canned software sold on media is “goods” for sales tax, since it can be bought, sold, transmitted and stored.
- A licence, not a sale of copyright: in Engineering Analysis Centre of Excellence v. CIT, 2021 INSC 137, the Court held that payments by Indian end-users and distributors for shrink-wrapped software were not royalties, because the end-user licence grants only a right to use the copy and does not transfer any of the section 14 rights in the copyright. The distinction between owning a copy and owning the copyright is the basis of the law on piracy.
3. Why software is easy to pirate
- The marginal cost of a copy is nil, and the copy is perfect.
- A programme must be copied into memory to be used at all.
- Distribution needs no physical carrier.
- Licence terms (number of users, machines, territory) are invisible in the copy itself.
- Users often do not regard copying for their own use as wrongful.
4. Modes of piracy
| Mode | What it involves |
|---|---|
| Softlifting (end-user piracy) | Installing one licensed copy on more computers than the licence allows; sharing copies within an office or among friends |
| Client-server overuse | More users on a network using the programme at one time than the licence permits |
| Hard-disk loading | A dealer installs unlicensed copies on computers it sells, as an incentive to buy the hardware |
| Counterfeiting | Making and selling copies made to look genuine, with copied packaging, manuals and labels |
| OEM and academic unbundling | Selling separately software licensed only with particular hardware, or academic versions to commercial users |
| Renting | Renting copies for temporary use without permission |
| Internet piracy | Offering programmes for download from websites, auction sites, file lockers or through peer-to-peer and torrent networks |
| Cracking | Removing or bypassing licence checks with cracks, patches and key generators, or distributing stolen licence keys |
| Cloning and reverse engineering beyond what the law permits | Copying the code or structure of an app or game and republishing it under a new name |
| Account and subscription abuse | Sharing or reselling cloud and subscription credentials, unauthorised access to software-as-a-service |
The online modes are the “online piracy” the syllabus mentions. They combine with other harms: cracked software is a common carrier of malware, and pirate sites rely on advertising.
5. The legal response in India
Copyright Act, 1957
- Section 14(b): the owner of copyright in a computer programme has the literary work rights and the right to sell or give on commercial rental any copy (rental does not cover programmes that are not the essential object of the rental, such as software embedded in a car).
- Section 51: installation, sale, distribution and making available of unlicensed copies infringe.
- Section 52(1)(aa) to (ad): permitted acts for lawful possessors (back-up, adaptation for use, interoperability, observation and testing, personal non-commercial copy from a lawfully obtained copy).
- Sections 63, 63B and 64: offences, including knowing use of an infringing copy of a programme on a computer, and police seizure.
- Section 65A: circumvention with intention to infringe, which catches cracking; section 65B: removal of rights management information.
Information Technology Act, 2000
- Section 43: compensation for unauthorised access, downloading or copying data, introducing viruses, damaging or disrupting a computer system and related acts; section 66 makes the same acts an offence when done dishonestly or fraudulently.
- Section 65: knowingly concealing, destroying or altering computer source code that is required to be kept by law.
- Section 66B: dishonestly receiving or retaining a stolen computer resource.
- Section 79: safe harbour for intermediaries hosting pirated software, lost on actual knowledge.
Contract
End-user licence agreements, shrink-wrap and click-wrap terms limit use and transfer. Electronic contracts are valid under section 10A of the IT Act.
Cases
Delhi High Court decisions such as Microsoft Corp. v. Yogesh Papat (2005) granted damages against dealers who loaded unlicensed software, and the court routinely issues ex parte injunctions with local commissioners to inspect businesses running unlicensed copies.
6. Comparative note on piracy
The US adds the DMCA ban on circumvention devices and statutory damages per work infringed. The EU Software Directive (2009/24/EC), Article 7, requires remedies against putting into circulation infringing copies and against means intended solely to remove technical protection of a programme. TRIPS Article 61 requires criminal procedures for wilful copyright piracy on a commercial scale.
How this is examined
Likely long questions: “Explain the relationship between IPR and information technology.” “What is software piracy? Discuss its various modes and the legal remedies available in India.” “Examine online piracy of computer programmes under the Copyright Act, 1957 and the IT Act, 2000.”
Likely short notes: softlifting; hard-disk loading; counterfeiting of software; copyleft; section 63B; section 65 of the IT Act; Engineering Analysis.