Dealing ‘Fairly’ with Software in India

Abstract

Section 52(1)(ab) of the Copyright Act, 1957 deals with the fair use exception in case of computer software. This paper attempts to analyse the scope of this exception when applied to software as a work of art in India. The right to decompile, as found in different countries and enactments, is compared with the Indian position. It is argued that this right must be given very strictly. The Indian position on the right to decompile is very nebulous. The statutory guidelines are insufficient and poorly drafted, leaving the limits of this right uncertain. Allowing decompilation without placing distinct restrictions on how to use such extracted information, completely outweighs the reasoning of fair use doctrine. Inadequate guidelines as to the extent to which a program may be reverse engineered and who is allowed to reverse engineer, leaves loopholes in the protection of software copyright, allowing circumvention of copyright and the defence of fair use while commercially exploiting competing interoperable programs. The paper concludes by stating that with the growing rate of peer-to-peer sharing in India, this exception, unless narrowed down in its scope, may go beyond mere fair use and may be used to circumvent liability for infringement of copyrighted software.