[Reader-list] Authors special rights

[zamrooda]

The Indian Copyright Act 1957,
Section 57
Authors special rights :

Apart from the right to Copyright the author of a work has the right to claim
authorship of the work;and to restrain or claim damages for any distortion,
mutilation,modification or other work in relation to the said work done
before the expiration of the copyright term and or if it is prejudicial to
his honor or reputation.

 Are software companies obliged to give credit to all its employees
or contractors who have worked on a product or project, however small it may
be? Can programmers who develop software for MNCs demand that they be named
as co-authors of the programme when the product or project is finally
delivered?

 The answer to these questions can throw the whole software industry into
chaos with programmers demanding their 'rights'. Legal experts assert that
the Indian Copyright Act (Amended) confers Special Rights (Section 57 of the
Indian Copyright Act) on software programmers to demand that they be named as
co-authors of a 'work' even though they were involved in merely writing a
small module of a large programme.

"A programmer has a legal right to get the company name him in the copyright.
He or she also has the right to stop mutilation of source code-," says Mr
Mustafa Safiyuddin solicitor, M&M Legal Ventures, Mumbai and a specialist in
intellectual property rights in the infotech industry.

 Since software programme is listed under the literary work, the copyright
comes into existence the minute the programme is written. The rights may be
shared or rest .in one individual as is the circumstance. However, at no time
does a software code or even a 'flow-chart' for that' matter lies
 unprotected.

In some of the developed countries, these rights are termed as Moral Right
and Integrity Right. In fact, Japan has made it mandatory for companies to
name programmers as co-authors of a 'work' and extend royalty to them.
However, the special rights under the Indian Copyright Act does not provide
for any monetary benefit. Mr Safiyuddin says the special rights applies not
only to employers of a company but also the outside contractors.

 This brings the attention on what will happen when all the employees start
asserting their rights. Mr Safiyuddin says the only way out is to get the
employee or the contractor waive his/her special right. rights applies not
only to employees of a company but also the outside contractors who are
developing part of the work.

Mr N.L. Mitra of the National Law School of India University, says as per the
General Agreement on Trade and Tariffs (GATT), India can change its Copyright
Act to accommodate the Moral Rights and provide greater protection to Under
the definition of the law, special rights cannot be assigned to authors. He
reveals that India is considering defining Moral Rights.

Today, moral rights are conferred on the 'author' (in this case, programmer)
by the Special Rights. Another but can only be waived. "Even before a company
embarks upon a project, it should get its employees to waive their rights if
it does not wish to name them as co-authors," Mr Safiyuddin advises software
development companies.

This is just the tip of the iceberg. As India moves closer to the deadline to
fulfill the GATT guidelines, fuller implications of copyright act with
respect to the software industry is becoming manifest.

 AP-PTI Legal experts recommend a rigorous IPR management by corporates.
"Right from day one, companies should document what it considers is of
importance and confidential nature," says Mr Safiyuddin. Today, companies are
struggling to find ways to stop its employees from misusing confidential
information after leaving the company.

The problem is holding information is ruled out as companies need to reveal
information crucial to their business to aid the employees in executing the
assignments. This has created a catch-22 situation in the industry. With
attrition rate being as high as 40 per cent in the software industry, this
issues has attained scary proportions.

One solution is to organise their information more deftly. Know what is
confidential and what is public, and then go about documenting the
confidential information to bring it under the copyright protection law.
Develop a system where employees are educated about their rights and their
obligations in copyright protection. While joining work or during the taking
up of assignments, the company should ensure that all its copyright
requirements are met such as getting employees sign the Non-Disclosure
Agreement document, and waiver of moral rights.

Indian software industry is highly lax in copyright issues. Neither do
companies realise its full rights nor are the employees aware of their
rights. This has apparently led to a severe IPR erosion. Analysts point out
that copyright has not got as much mindshare and exposure as patents even
though the latter is seldom extended to software programmes in India. Legal
experts say since copyright is universally recognised, Indian companies will
have to secure their IPRs before looking at acquiring patents.

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