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33. We have noticed that in this case the applicant purchased software from various third party vendors. Such software was protected by copy rights. The applicant itself is not using such software and has obtained licence for use of software by all member E&Y firms. The applicant has created a standard facility and is allowing access to all E&Y firms, including EYGBS India, and is charging them with respect to number of users. The payments received are for use of computer software loaded an applicant‟s server. Under Article 13(3)(a) consideration received for the use of, or the right to use, any copyright of a literary work is royalty. The applicant‟s main contention is that „literary‟ does not include computer software because it is not specifically included and its meaning cannot be imported from section 9(1)(vi) of the Act. In this context we have to see whether computer software has all along been included in literary work or not. We have analyzed the meaning of „software‟ under the Indian copy right Act and under the copy right of several countries. Here it is relevant to mention that Article 10 of the Trade Related Aspects of Intellectual property (TRIPS) Agreement, which came into effect on 1 January 1995 contains an interpretive provision stating that computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).

includes computer programmes, tables and compilations including computer "literary data base". This discussion clearly establishes that computer software is literary work protected by copyright laws around the world and, therefore, is covered under the definition of royalty under Article 13(3) of DTAA.

iv) The fourth category includes cases wherein computer software is affixed onto hardware and is sold as an integrated unit/equipment by foreign, non-resident suppliers to resident Indian distributors or end-users.4 xxxxx

43. Thus, by virtue of Article 12(3) of the DTAA, royalties are payments of any kind received as consideration for "the use of, or the right to use, any copyright" of a literary work, which includes a computer programme or software.