Sap Aktiengesellschaft & Anr. v. Mr. Sadiq Pasha (CS(OS) No. 255/2005) is a software copyright infringement case decided by the Delhi High Court. The case was decided in favour of the plaintiffs and the defendant was ordered to pay punitive damages amounting to rupees one lakh to the plaintiffs.
Facts
The first plaintiff is a German company and the second plaintiff is its Indian subsidiary. The plaintiffs claimed that the first plaintiff had developed certain programmes, namely SAP R/2 and SAP R/3, which were highly customized and off the shelf programmes. The software programmes were, in essence, automatic accounting and transaction-processing programmes that were modified to suit each customer. The programmes helped the customers deploy resources more efficiently and thereby maximize their productivity. Given the nature of the software, it had purpose specific end user license agreements to govern all areas of usage by the customers, including training and education.
The plaintiffs alleged that the defendant’s company offered training for the plaintiffs’ software in Bangalore. In terms of modus operandi, the defendant marketed his training sessions through the website http://www.neologikindia.com. The plaintiffs claimed that the defendant had no legal right to use their software and provide the concerned training, as they had not granted the defendant any license to use their software. The plaintiffs also claimed that since they had not given the defendant any license to use their software, by providing training, the defendant had either illegally obtained, installed and used the plaintiffs software or was using pirated versions of the same. Raids and searches conducted at the defendant’s premises confirmed the allegation.
Thereafter, the plaintiffs claimed that an e-mail was sent by the defendant to the plaintiffs wherein he not only acknowledged use of the first plaintiff’s unlicensed software programmes but also admitted that despite raid by police he continue to conduct unauthorized training programme in SAP software. The plaintiffs accordingly sought an injunction restraining the defendant from reproducing/installing and/or using pirated/unlicensed software programmes owned by the first plaintiff. They have also sought delivery up of the infringing material besides seeking rendition of accounts.
Law
Computer programmes are protected as literary works under section 2(o) of the Copyright Act. The first plaintiff’s programmes were registered and protected as copyrighted work in Germany. The Court held that Section 40 of the Copyright Act, to the extent it is relevant, provides that the Central Government may, by order published in the Official Gazette, direct that all or any provisions of the Act shall apply to work first published in any territory outside India to which the order relates in like manner as if they were first published within India. Para 3 of International Copyright Order 1999 dated 24 March 1999 published in the Gazette of India, states that under the aforesaid order, all the provisions of the Copyright Act, 1957, except those in Chapter VIII and those other provisions which apply exclusively to Indian works, have been extended to any work first made or published in a country mentioned in the Order in like manner as if the concerned work was first published in India. Germany is included as one of the countries mentioned in the Order and its name appears at number 131 of the list. Paragraph 2 of the aforesaid Order provides that “Berne Convention Country” means a country that is a member of the Berne Copyright Union and includes a country mentioned either in the relevant parts of the Order. Therefore, Germany is a member of the Berne Copyright Union and all the provisions of the Copyright Act, 1957 except those contained in Chapter VIII, and those other provisions which apply exclusively to Indian works are applicable to the copyrights in respect of any work which has been published first in Germany. Hence, it was concluded that the first plaintiff’s programmes were protected under the Indian Copyright Act.
Decision
On the basis of the facts set out above, the court held that the defendant was guilty of copyright infringement. The proceedings were held ex parte and it is interesting to note that the court awarded punitive damages to punish the defendant on the basis that by being absent from the proceedings and not contesting the same the guilty party cannot escape punishment.
Capital punishment should be very high. 1 lac is nothing these days and does not work as a deterrent.