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Copyright Law In India Essay

7384 words - 30 pages

I. Introduction
During the early days of computer industry, the software came integrated with hardware. The issue of intellectual property remained confined to hardware only. All this changed during the sixties when software was unbundled from hardware. This gave rise to independent software vendors (ISVs) and the production of standard and custom operating systems, as well as independent applications software’s. Rapid diffusion of low-cost desktop or personnel computer (PC) in late seventies and eighties opened up huge opportunities for ISVs. The software industry gradually increased in terms of overall trade, production and consumption. In 1990s, the widespread diffusion of the Internet ...view middle of the document...

In the ongoing debate or controversy to the patenting of the software. The Indian scenario is briefed upon in the last followed by the conclusion.

Trips and computer software
World Trade Organisation Agreement on “Trade-Related Aspects of Intellectual Property Rights” (TRIPS), the details of which were finalised in the concluding Uruguay round in 1994, specifies some minimum standards that must be adhered for protection of Intellectual Property (IP) by the member countries. Eight types of IPRs including patents, copyrights, trademarks, etc. have been specifically mentioned in the provisions of the TRIPS Agreement. The objectives of the TRIPS Agreement have been clearly spelt out in the Article 7 of the Agreement that the protection and enforcement of IPR should contribute to the promotion of technological innovation. It should also promote the transfer and dissemination of technology, to the mutual advantage of the producers and users, in a manner conducive to social and economic welfare. It may also be noted that India is a signatory to TRIPS Agreement and so it is obligatory to implement the same. Article 27 of TRIPS lays down that for any invention, whether product or process, patents can be granted, provided the invention is new, involves an inventive step and is capable of industrial application. Further Article 10 relating to Computer programs and compilations of data specifically lays down that computer programs whether in source or object code, shall be protected as literary works under the Berne Convention 1971, which relates to protection of literary and artistic works. It also lays down that compilations of data shall be protected as such, without any prejudice to any copyright subsisting in the data or material itself. Hence it is difficult to conclude from the TRIPS Agreement whether computer programs are to be predominantly protected under the copyright law and not under the patent law. It may be stated that making claim to objects such as computer software as patentable items according to TRIPS Agreement is a debatable issue. One view is: that Article 27 of TRIPS requires Member Governments to grant patents on "any inventions, whether products or processes, in all fields of technology, provided they are new, involve an inventive step [or are non-obvious], and are capable of industrial application." Yet this does not authorise patents on obvious products or processes, or on things that are not "inventions." Article 1 of TRIPS authorises members to "implement in their law no more extensive protection than is required by this Agreement." This might be read to permit patents, trademarks or copyrights on anything whatsoever, whether or not new, obvious or original. Yet such a reading could have aberrant consequences, and does not conform to the commonly understood definitions of patents, copyright, or intellectual property. The only other section of any WTO Agreement to mention patents, is Article XX(d) of GATT 1947, which...

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