Copyright

Part II: Is decompilation of software legal under the Indian Copyright Act


The previous post discussed the development of the US and European laws as applicable to reverse engineering.  This post compares the Indian provisions with the European and US counterpart legislation.  

One important aspect is the growing number of application developers in India for the Android, iOS, Blackberry, Windows platforms.    Usually application developers do not start development of applications from scratch.  A mish-mash of existing and new code is used.  For example, all four of the platforms discussed above provide tutorials and common libraries for their platform.  Developers then add to the existing libraries and build their unique applications.  However, developers also like to see, if possible, existing  best selling applications and their code, and apply the teachings of the best selling applications to their application development.  A recent study by Flurry analytics showed  that India is a major adopter of the new platforms and there are quite a large number of application developers in India.   

INDIAN LAW in view of US / European provision:

Section 52 of the Indian Copyright Act follows the European Directive (or more appropriately, the development of the European directive before its formal adoption).  Certain provisions are verbatim to the Directive, while there is marked difference in some.  The provision relevant to reverse engineering are highlighted below and compared with the Articles in the directive / and US law:
52. Certain acts not to be infringement of copyright. (1) The following acts shall not constitute an infringement of copyright, namely:

…”(ab) the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available;

(ac) the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied; 
  
Indian law

EU Directive

US law

Section 52, paragraph ab

Article 6

Section 1201 – rule making

the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available;

where reproduction of the code and translation of its form … are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:

(a) those acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so;

(b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in point (a); and

(c) those acts are confined to the parts of the original program which are necessary in order to achieve interoperability.

“..(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.


Indian law

EU Directive

US law

Section 52, paragraph ac

Article 5(3)

Section 1201 – rule making

the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied;

The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the right­holder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do

“..(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

Based upon the above comparison between EU, US and Indian laws, the following conclusion may be drawn:  Indian law is much broader than counterpart EU legislation and allows for reverse engineering (both black box and active decompilation) without major restrictions on the reasons for decompilation.  The actual implementation / interpretation by courts remains to be seen.

Rajiv Kr. Choudhry

Rajiv Kr. Choudhry

Rajiv did his engineering from Nagpur University in 2000 in electronics design technology. He has completed his LL.B. from Delhi University, Law Center II in 2006, while working as an engineer at ST Microelectronics in NOIDA. After his LL.B., he went on to The George Washington Univeristy, Washington DC to do his LL.M. in 2007. After his LL.M., he has worked in the US at a prestigious IP law firm based out of Philadelphia. Till 2014, he was Of-Counsel to a Noida based IP law firm where he specialized in advising clients on wireless, telecommunication, and high technology. Rajiv is the founder of Tech Law Associates, a New Delhi based law firm specializing in IP law, with a focus on high - technology, and patent law. His core IP interest areas are the intersection of technology and IP, Indian IP policy, innovation, and telecommunications patents. He is also an inventor with pending applications in machine-to-machine communications domain (WO2015029061).

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