Intellectual property has a direct bearing on the industrial competitiveness and economic growth. However, the acceleration towards industrial competitiveness has lead to the creation of its parasite called – Pirates and Counterfeits. Pirates and Counterfeits have now emerged as one of the major menace globally and is prominent among the increasing socio-economic crimes.

Even though the term piracy and counterfeits are used synonyms in general parlance, the terms connote different meanings. The word “counterfeit” is generally used in the case of trademark and patents where as the term “piracy” is used for copyrighted goods. The foot note in Article 51 of the TRIPS Agreement clarifies and defines as follows:

“Counterfeit trademark goods“ shall mean any goods, including packaging, bearing without authorization a trademark which is identical to the trademark validly registered in respect of such goods, or which cannot be distinguished in its essential aspects from such a trademark, and which thereby infringes the rights of the owner of the trademark in question under the law of the country of importation”;

“Pirated copyright goods“ shall mean any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation”.

Undoubtedly, counterfeiting and piracy are double edged sword as they not only pin down the profits of manufacturer, but also deceive consumers who ultimately waste money and also risks safety by purchasing counterfeit/pirated products. One of the mostwide spread counterfeiting happens in the area of software and countries globally have set out effective means to curtail software piracy.

India being a developing country and an emerging global destination is curbed by software piracy and counterfeits. In fact it is a truth that India is one of the worst affected countries with respect to piracy/counterfeiting and ironically one of the countries which lack effective legislations in curbing the menace of piracy. India still figures in the priority watch list of the Special 301 Report issued by Office of the United States Trade Representative. Software piracy in India, is primarily by way of the following:

• Counterfeits: Counterfeiters produce disk, documentation and packaging that are identical or deceptively similar to those of the authorized software publisher.
• Resellers: When the distributors or dealers make either copies of software in diskettes, CDs or internal storage device of the computers they are selling.
• Mail order houses: Unauthorized copying into diskettes, CDs or other media and distribution of such software by post.
• Bulletin boards: Unauthorized reproduction and distribution by way of telecommunication;
• End-user piracy: End user copying software into hard disks of more computers than the number authorized by the publisher.

Relevant Laws against software piracy in India

There are no specific statues in India to curb the menace of software piracy in India. However, there are ample provisions in several legislations which help in containing the menace. Following are the summary of the major anti – software piracy legations in India.

A. Substantive Legislations.

• The Copyright Act, 1957
• The Trade Marks Act, 1999
• Indian Penal Code, 1860

B. Procedural Legislations.

• Civil procedure Code, 1908
• Criminal Procedure Code, 1973
• Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007

The Copyright Act, 1957:

The primary and the most effective and operational legislation to restrict and contain software piracy is the Copyright Act, 1957. The Act underwent many amendments but the Amendment Act of 1995 brought in sweeping changes where in the Act explained

• The rights of a copyright holder.
• Position on rentals of software.
• The rights of the user to make backup copies etc.
• Imposition of heavy punishment and fines for infringement of copyright of software.

Remedies under the Act

Both Civil and Criminal proceedings can be initiated under this Act.

• Civil Remedies available under the Act
  • Suit for infringement coupled with injunction, damages or accounts of profits as the case may be under section 55 of the Act.
  • Suit for infringement along with Mareva injunction, Jon roe Orders and or Anton Pillar Orders as the case may be.
  • Suit for Damages
    • Actual damages
    • Exemplary or punitive damages

• Criminal Remedies available under the Act
  • As per Section 63 of the Act any person who infringes the copyright shall be punishable with imprisonment of not less than 6 months which may be extended up to 3 years and with fine which shall not be less than Rs. 50,000 and may extend to 2,00,000.
  • As per Section 63 B of the Act, any person knowingly making use of the a infringing copies of a computer programme shall be punishable with imprisonment of a term not less than 7 days and which may extend to 3 years and fine for Rs. 50,000 which may extend to 2,00,000.

In copyright infringement cases any police officer above the rank of sub- inspector can proceed without warrant and seize all infringing materials, copies of the work and plates used for making infringing copies. The cognizance of any offence under the Act shall be taken only by a Court not inferior to a Metropolitan Magistrate or Judicial Magistrate.

The Trade Marks Act, 1999

The Trademarks Act can also play a very vital role provided there is a violation of the trademark or brand name in any manner. Both Civil and Criminal proceedings can be initiated under this Act.

• Civil Remedies available under the Act
  • Suit for trademark infringement coupled with injunction, damages or accounts of profits as the case may be under Section 27 (1) of the Act.
  • Suit for passing off action coupled with injunction, damages or accounts of profits as the case may be under Section 27(2) of the Act.
  • Suit for infringement along with Mareva injunction, Jon roe Orders and or Anton Pillar Orders as the case may be.
  • Suit for Damages
    • Actual damages
    • Exemplary or punitive damages
  • Criminal Remedies available under the Act
    • Criminal complaint can be filed against falsifying and falsely applying the trademark under Section 103 of the Trade Marks Act 1999.
    • Police Complaint can be filed before the Deputy Superintendent of Police to the effect that the trademark has been falsely applied and that the offence is committed or likely to be committed and hence requests for search and seizure of the goods and moulds.

Indian Penal Code, 1860

The Indian Penal Code does not define piracy however the Section 28 of IPC defines what amounts to counterfeit.

A person is said to ‘counterfeit’ who causes one thing to resemble another thing, intending by means of that resemblance practice deception, or knowing it to be likely that deception will be thereby practiced.

The act of counterfeiting or piracy will involve cheating under section 415 of IPC and whoever cheats is liable to an imprisonment of one year or fine or both.

Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007

One of the major snags the country faces today is the cross border movement of counterfeit goods. In order to curb the menace of counterfeits through cross border movement, the Ministry of Finance, Department of Revenue in India notified the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 tightening IP and Customs laws. As per Rule 3 (1) of the aforementioned Rules, a right holder may give a notice in writing to the Commissioner of Customs or any Customs officer authorized in this behalf by the Commissioner, at the port of import of goods infringing intellectual property rights, requesting for suspension of clearance of goods suspected to be infringing Intellectual Property Right.

Role of Judiciary

The outlook of the Indian Judiciary towards infringers and counterfeiters underwent a radical change. Earlier the Indian Courts were reluctant to initiate or impose heavy penalties/damages against the infringers and were restricting themselves to injunctive reliefs only. However that attitude underwent a considerable shift by way of the following cases.

• Time Incorporated v. Lokesh Srivastava 2005(30) PTC 3(Del) The court held that punitive damages need to be granted to discourage and dishearten law breakers who indulge in violations with impunity.
• Microsoft Corporation v. Yogesh Popoet. 2005 (30) PTC 245. The court considered the violation of the plaintiff's trademark and copyrights and awarded damages of Rs 1.97 million for the violation of the plaintiff's rights by the defendants.
• Microsoft Corp. v. Deepak Raval. 2006 (33) PTC 122. The Court observed that had the claim of punitive damages was higher, the court would not have hesitated in awarding the same.
• Microsoft Corporation v. Ms. K. Mayuri and Ors. 2007 (35) PTC 415 the Court held that the plaintiff is entitled to the award of exemplary/punitive damages as well as damages on account of loss of reputation and damage to the goodwill because of sale of spurious and pirated goods sold by the defendants in the name of the plaintiff's company and awarded a sum of Rs. 5,00,000 under those two heads The total damages however was quantified as Rs. 10,00,000.
• Microsoft Corporation v. Mr. Kiran and Anr. 2007 (35) PTC 748 (Del).A sum of Rs. 5,00,000 was awarded to the plaintiff.
• Microsoft Corporation and Anr. v. Mr. A. Jain and Ors 2008 (36) PTC 346 A sum of Rs. 5,00,000 was awarded to the plaintiff.

Role of the Government and Other Agencies.

The Government and other agencies had been active in curtailing the counterfeiting and effectively there has been a decline in the levels of piracy in India. Some of the key initiatives on the part of the Government can be summarized as follows.

• The Department of Education, Ministry of Human Resource Development, Government of India has initiated the constitution of a Copyright Enforcement Advisory Council (CEAC).
• Creation of separate cells in state police headquarters.
• Encouraging setting up of collective administration societies and organization of seminars and workshops to create greater awareness of copyright laws among the enforcement personnel and the general public.
• Special cells for copyright enforcement have so far been set up in 23 States and Union Territories, i.e. Andhra Pradesh, Assam, Andaman & Nicobar Islands, Chandigarh, Dadra & Nagar Haveli, Daman & Diu, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Pondicherry, Punjab, Sikkim, Tamil Nadu, Tripura and West Bengal.

Role of other Agencies

• National Association of Software and Service Companies (“NASSCOM”)
• Business Software Alliance (BSA)

These organizations are actively involved in promoting the concepts and advantages of using legalized software and also educating the end users and law enforcing authorities by way of seminars and other programs the importance of legalized software and further helps the police in conducting raids etc.

Conclusion

In spite of the fact that there are no specific legislations in India to curtail piracy/counterfeiting, the provisions in various statues acts in combination and provides for an effective means to curb the menace. Further, the active role of the Indian Judiciary and affirmative initiatives made by the Government of India have definitely boosted in a new confidence and it can be very well concluded that the piracy/counterfeiting can be effectively curtailed in India. With proficient alertness and cautious approach and appropriate education by authentic manufacturers, it can be confidently assumed that the menace of piracy can be eradicated to a large extent in India.

Author - Vineed Abraham

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