Computer programmes or software are classified as “literary works” under the Copyright Act, 1957. Software owners assert copyright in their software, however source code (also protectable under the act) is usually kept confidential. If source code is not available, tools for decompilation, generally known as “decompilers”, allow for the conversion of computer readable code into human readable source code.
Decompilation is also generally referred to as “reverse engineering”.
While copyright law protects the expression of ideas, information related to functionality is generally not protectable. Practically, however, it is not possible to understand how software works in terms of its principles, steps or functionalities by simply having access to the software without decompiling the software in question. Decompiling software includes reproducing the software, which could, from a definitional perspective, amount to an infringement of copyright.
Internationally, copyright is a monopoly right that is subject to certain “exceptions” and “limitations”, the objective of which is to ensure that the public has a right to access works in given situations and further to ensure that the monopoly right does not act as a disincentive for creativity and competition. Section 52 of the Copyright Act is the “exceptions provision” in Indian copyright law, which mandates certain exceptions to the rights attached to copyright ownership. The provision identifies various acts and situations in relation to which the exploitation of copyrighted works is deemed as not amounting to copyright infringement.
Software licence agreements, called end-user licence agreements (EULAs), usually contain standard terms barring licensees from “reverse engineering” the licensed software. While this bar may be appropriate in other countries, this does not hold true for India. Sections 52(1)(aa) to (ad) of the act lay down the mandated exceptions with respect to computer programmes or software. Specifically, sections 52(1)(ab) and (ac) include within their scope the reverse engineering of software by way of decompilation for a given set of purposes.
Section 52(1)(ab) states that “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” does not constitute an infringement of copyright. The provision thus clarifies that reverse engineering for the purpose of achieving inter-operability is permitted provided the information necessary to achieve inter-operability is not readily available. One way in which information could be understood as being readily available would be in the form of “software development kits” provided by many software owners.
This provision is broader than article 6 of the EU directive on the legal protection of computer programs (1991), which deals with “decompilation”, since the EU directive limits the exception only to the “parts of the original program” which are necessary in order to achieve inter-operability, whereas no such restriction is contained in the Indian provision.
While the scope of section 52(1)(ab) is limited to the purpose of achieving “inter-operability” between two or more computer programmes, section 52(1)(ac) broadly allows for 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”, and thereby allows for decompiling a computer programme.
This raises the question of whether two private parties contracting under a EULA which bars reverse engineering can contract in derogation or contradiction to the statute. While contracting out of a statute is generally allowed under Indian law, contracting out of a statute in derogation of (a) public policy, (b) a prohibition inherent in the law, or (c) with a purpose to defeat the provisions of any law, is not allowed and accordingly such a contract would be unenforceable under Indian law.
The Copyright Act is based on the stated public policy of ensuring a balance between the right of the public to access works and the interests of the copyright owner. The exceptions provided in sections 52(1)(ab) and (ac) of the act are thus based on the public policy which seeks to preserve the public’s right to access works. Therefore, a broad contractual bar on reverse engineering/decompiling software could potentially be unenforceable.
Though the basic legislative intent behind the enactment of sections 52(1)(ab) and (ac) is to ensure that unnecessary monopolization of principles and techniques underlying software does not take place, a broad “exception” without necessary instructions (as is the case with the Copyright Act) can render the very object of copyright protection useless.
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