Delhi District Court
This Is An Order On The Complaint Under ... vs . on 7 February, 2014
1
IN THE COURT OF Ms VEENA RANI: CHIEF METROPOLITAN
MAGISTRATE, SOUTH EAST DISTRICT, NEW DELHI
MCA No.05/2014
1. Microsoft Corporation
One Microsoft Way Redmond
WA 980526399
2. Microsoft Corporation India Private Limited
Eros Corporate Towers, 5th Floor, Nehru Place,
New Delhi110019 .....Complainants
Vs.
Unknown Persons .....Respondent
07.02.2014
Present: Ld. Counsel for complainants.
ORDER
1. This is an order on the complaint under section 63 & 65 of the Copyright Act 1957 and Section 420/120B of the Indian Penal Code 1872 filed by the complainants. Brief facts of the case are that the complainantherein is a public limited company incorporated under the Companies Act, 1923 and is the owner of copyrights in various computers programs developed by them and no person has the right to use the software belonging to the complainants company without the licence/permission/consent of the complainants company and any person doing so would infringe the copy right of the plaintiff as defined under section 51 Cr. No. 05/14, Microsoft Corporation Vs. Unknown Persons 2 of the Copyright Act, 1957. It is submitted that in the month of December 2013, one of the representative of the complainants has came to know that some unknown persons/firms/companies are indulging in the piracy of complainants software and this is causing severe losses to the complainants both in terms of money and goodwill and reputation. It is stated that such unknown accused persons are dealing in sales of branded desktops/laptop however they uploading the pirated software of the complainants to their various prospective buyers which infringes the copyright of the complainants company and cheats unwary persons by inducing them to buy pirated versions of the complainants software. It is further submitted that complainants have neither allowed nor authorized the accused persons to use their registered software having Copyright subsists in their software and complainants company has no connection or association with the accused persons either directly or indirectly. It is stated that by virtue of their infringing acts of the accused company the following offences under section 63 & 65 of the Copyright Act, 1957 and also section 420/120B of the Indian Penal Code have been committed by the accused persons and its officials. Hence, the present complaint.
Cr. No. 05/14, Microsoft Corporation Vs. Unknown Persons 3
2. I have heard the ld. Counsel for the complainants and perused the records.
3. According to section 2(ffc) of the Copyright Act, a computer program is a "set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular results". The essential elements of a computer program are: It is a set of instructions expressed in:
a. words, b. codes, c. schemes or d. in any other form, including a machine readable medium. capable of causing a computer to:
a. perform a particular task or b. achieve a particular results.
4. Computer software is "computer program" within the meaning of the Copyright Act. Computer programs are included in the definition of literary work under the Copyright Act.
5. Author's Right: The Copyright Act protects the author's Cr. No. 05/14, Microsoft Corporation Vs. Unknown Persons 4 economic and moral rights in the copyrighted work as stated in section 14 and 57 respectively, including the rights in computer software/programmes. In the case of computer software/programmes, the copyrights owner is entitled to reproduce the work, issue copies of the work to the public make any cinematographic films or sound or adaptation of the work, apart from the right 'to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer software/ programmes. Such commercial rental does not apply in respect of computer software/programmes where the computer programme itself is not essential object of the rental. This provision on rental rights is in line with Article 11 of the TRIPS Agreement and was added in the Act in 1999. Even though the TRIPS Agreement does not specifically protects the moral rights, buy the same are protected under the Copyright Act, 19573.
6. Computer Program A Literary Work : Section 2 (o) defines 'literary work' and includes computer programs, tables and compilations including computer databases. Section 13 provides the categories of work in which the copyright subsists which includes original literary work. The author of a work is the first owner of copyright in the work. However in case of employer Cr. No. 05/14, Microsoft Corporation Vs. Unknown Persons 5 employee if a work is made in course of employment under a contract of service or apprenticeship, the employer shall be the first owner of the copyright in the above of any contract to the contrary4. These provisions of the copyright law are applicable mutatis mutandis to computer software/ programmes as well.
7. In Tata Consultancy Services v. State of Andhra Pradesh (reported in Tata Consultancy Services v. State of Andhra Pradesh, 271 ITR 401 (2004)), the Supreme Court considered computer software is intellectual property, whether it is conveyed in diskettes, floppy, magnetic tapes or CD ROMs, whether canned (Shrinkwrapped) or uncanned (customized), whether it comes as part of computer or independently , whether it is branded or unbranded, tangible or intangible; is a commodity capable of being transmitted, transferred, delivered, stored , processed , etc. and therefore as a 'good' liable to sale tax. The court stated that, 'it would become goods provided it has the attributes thereof having regards to (a) its ability; (b) capable of being bought and sold; and
(c) capable of being transmitted, transferred, delivered, stored and possessed. If a software whether customized or noncustomized satisfies these attributes, the same would be goods.'
8. The copyright in a computer program is deemed to be Cr. No. 05/14, Microsoft Corporation Vs. Unknown Persons 6 infringed when any person without a license or in contravention of the conditions of a licence:
1. does anything, the exclusive right of which is conferred upon the owner of the copyright by the Copyright Act, or
2. commercially permits any place to be used for the communication of infringing work to the public.
9. The following are also deemed to be infringement:
1. distributing, selling or hiring out infringing copies,
2. exhibiting infringing copies in public,
3. importing infringing copies into India.
10. A brief description of common methods of copyright infringement employed in relation to computer software is:
a. reproducing the software and its packaging so that purchasers are deliberately misled into believing that the product they are buying is genuine software.
b. reproducing or "burning" the software onto a blank CD, where no attempt is made to represent that the copy is genuine. c. reproducing a number of the programs on a single CD ROM knwn as 'compilation' CD.
11. Another form of piracy that is assuming great significance in the information age is that of Internet piracy. Internet piracy Cr. No. 05/14, Microsoft Corporation Vs. Unknown Persons 7 occurs when software is downloaded from the Internet or distributed via the Internet without the permission of the copyright owner. Common Internet sites used for this infringing activity include online classified advertisements, Auction Houses, newsgroups, personal web sites and Bulletin Board Service (BBS) sites.
12. In the present case the complainantherein has specifically averred that some unknown persons / firms companies are indulging in the piracy of the complainant's software and this is causing severe losses to the complainantcompany both in terms of money as well as in terms of reputation. I have also perused the packaging of the product one of which is counterfeit. I am satisfied that an instigation is required into the allegations. I therefore direct the SHO/EOW to register an FIR and conduct the investigation in the matter with the help of the complainants herein. Original complaint be handed over to the SHO/EOW after retaining a copy of the same on record as per rules. Announced in the open court.
(VEENA RANI) CMM/SE/SAKET COURTS,NEW DELHI Date :07022014 Cr. No. 05/14, Microsoft Corporation Vs. Unknown Persons