Ashwini Siwal, Doctoral Fellow, Faculty of Law, Jamia Millia Islamia, New Delhi
“I could be bounded in a nutshell, and count myself a king of infinite space ((William Shakespeare, Hamlet, Act 2, Sc 2.)).”
There have always been arguments and counter arguments about the role of internet in the society ((Vint Cerf widely known as the ‘Father of the Internet’ said in order to obtain information – we would share it. Not buy it. See http://www.thehindu.com/sci-tech/science/intellectual-property-industry-must-move-information-into-publicdomain/article4337177.ece?fb_action_ids=10151181929610916&fb_action_types=og.likes&fb_source=aggregation&fb_aggregation_id=246965925417366 (last visited 8th of February, 2013) similarly Tim Berners-Lee, credited with inventing the web considers it as an egalitarian method for sharing information which reduces inefficiencies caused by incompatible tools. See, e.g., Robert Wright, Tim Berners-Lee: The Man Who Invented the Web, TIME, May 19, 1997, http://www.time.com/time/magazine/article/0,9171,986354,00.html. (last visited 7th of February, 2013) Also Tim Berners-Lee & Robert Cailliau, WorldWideWeb: Proposal For A Hypertext Project, http://www.w3.org/Proposal.html (last visited 7th of February, 2013).)). But the advent of internet and modern digital technologies have created concern for proper copyright protection on the information highway as these enable easy, fast unauthorized access and piracy activities. The approach of the World Intellectual Property Organization (WIPO) as reflected in its WIPO Copyright Treaty (WPT), 1996 ((Refer to http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html for text of the treaty (last visited 3rd of Feb., 2013).))and WIPO Performers and Phonograms Treaty (WPPT), 1996 ((Refer to http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html for text of the treaty (last visited 3rd of Feb., 2013).))is to obligate the member states to incorporate Digital Rights Management (hereinafter referred to as DRM) provisions in their respective national copyright laws. It obligates them to provide effective and adequate legal provisions and remedies against the circumvention of effective technological measures used by the right holders and also against unauthorized tampering of rights management information ((See Article 11 and 12 of the WCT, 1996 and Article 18 and 19 of the WPPT, ibid)). Indian Parliament in a mark departure from its hesitant approach in moving towards the TRIPs + standard has provided for the DRM provisions by the Copyright (Amendment) Act of 2012 ((For text of the Copyright (Amendment) Act, 2012 refer to http://www.manupatra.com/ (last accessed 9th of February, 2013).))in an harmonizing attempt ((See, Scaria, Atul Geogre, Does India Need Digital Rights Management Provisions or Better Digital Business Management Strategies?, JIPR, Vol. 17, September 2012, pp. 463-477. Also Sibal Kapil, Statement of Object and Reasons-Copyright(Amendment)Bill,2012, http://220.127.116.11/BillsTexts/RSBillTexts/asintroduced/copyright.pdf (last visited 7th of Feb., 2013).))introduced Section 65A and Section 65B. This attempt to harmonies the Indian copyright law with the two WIPO Internet Treaties is supposedly considered being desirable for affording adequate protection in the digital environment. However, this underlying presumption and the desirability of DRM provisions have always been an unresolved issue. One of the view is that it affords better protection to copyright holders thereby ensuring that market failure does not occur and also affords the flexibility of differential pricing, thereby increasing the spread of information, the counter view however, presents a distinct picture that it has serious repercussions for users , their rights, freedom of speech and the entire innovation mechanism. The present paper would be an attempt to argue taking into account the experiences in those jurisdictions where such provisions were already there that DRM at the end of the day is likely to hit the Micro, Small and Medium Enterprises (MSME’s). Taking into account the significance of MSME’s which has the highest rate of employment ((That includes both self-employment and wage employment. It employs about 732.17 lakh people in over 311.52 lakh enterprises as per the available statics. The sector has continuously registered a higher growth rate than the rest of the industrial sector. http://msme.gov.in/MSME-Annual-Report-2011-12-English.pdf (last visited 7th of Feb., 2013).))growth and a major share of industrial production and exports ((It accounts for about 45 % of the manufacturing output and 40% of the total exports of the country. see http://msme.gov.in/MSME-Annual-Report-2011-12-English.pdf (last visited 7th of Feb., 2013).)). It account for more than 6000 products ranging from traditional to high-tech items. Apart from that they play a key role in the development of economies with their effective, efficient, flexible and innovative entrepreneurial spirit. These benefits can only be ensured by promoting innovation and competition in the market. The DRM poses a threat to that, therefore, the introduction needs a rethink if not be done away with then an annual reconsideration is at least desirable.
What is DRM?
Before turning to the specifics of the controls at issue, a word about definitions is in order. DRM law address breaches of DRM schemes. As previously mentioned the digital technologies coupled with internet have facilitated access and unauthorized mass copying in a fraction of time. DRM technologies are to provide against this behavior ((DRM technologies include encryption and watermarks. But like every technology it is also not full-proof and may be circumvented. See Besek June M., Anti-Circumvention Laws and Copyright: A Report from the Krenochan Centre for Law, Media and the Arts, 27(4) (2004) 447-449.)). DRM involves “technological protection measures (particularly focused on access control and copy control) and other components, such as identifiers (which identify content in a unique manner) and meta-data [including, for example, the identity of the copyright owner and the price for usage of the work] ((See generally Timothy K. Armstrong, Digital Rights Management and the Process of Fair Use, 20 HARV. J.L. & TECH. 49, 50 (2006) also refer to Kevin J. Harrang, Challenges in the Global IT Market: Technology, Creative Content and Intellectual Property Rights, 49 ARIZ. L. REV. 29, 30 (2007). There are other who argues that R stands for restrictions and not rights, like Neil Weinstock Netanel, The Digital Broadband Migration: The Next Wave of Innovation, 6 J. ON TELECOMM. & HIGH TECH. L. 77, 84; also refer to Symposium: The Law and Technology of Digital Rights Management: Edited and Excrepted Transcript of the Symposium on The Law & Technology of Digital Rights Management, 18 Berkeley Tech. L. J. 697.)). Its beauty for copyright owners lies in its ability to endow the right holder with control ((See Lionel S. Sobel, DRM as an Enabler of Business Models: ISPs as Digital Retailers, 18 Berkley Tech. L.J. 667, 670 (2003).)), but it is a bane for others, let us see how.
The DRM provisions that has been introduced by the Copyright (Amendment) Act, 2012
DRM provisions have been introduced in the form of Section 65A ((Section 65A: Protection of technological measures: (1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (7) shall prevent any person from,- (a) doing anything referred to therein for a purpose not expressly prohibited by this Act: Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or (b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or (c) conducting any lawful investigation; or (d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or (e) operator; or (f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or (g) taking measures necessary in the interest of national security. http://www.manupatra.com/ (last visited 9th of February, 2013).))and Section 65B ((Section 65B : Protection of Rights Management Information: Any person, who knowingly,- (i) removes or alters any rights management information without authority, or (ii) distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine: Provided that if the rights management information has been tampered with in any work, the owner of copyright in such work may also avail of civil remedies provided under Chapter XII against the persons indulging in such acts. http://www.manupatra.com/ (last visited 9th of February, 2013).)). Section 65A deals with protection against circumvention of technological measures, while on the other hand Section 65B deals with protection of rights management information. Section 65A (1) mandates that if any person circumvents an effective technological measure used for the purpose of protecting any of the rights conferred under the Copyright Act, with the intention of infringing such right, he shall be punished with imprisonment which may extend up to two years and shall also be fined. However, Section 65A (2) provides that it shall not prevent any person from doing anything referred to therein for a purpose not expressly prohibited by the Copyright Act ((Thereby, allowing the permitted acts under Section 52 of The Copyright Act, 1957. Ibid.)). The same provision also allows third parties to facilitate circumvention, provided he maintains a complete record of the details of the person and the purpose for which the circumvention was facilitated. Apart from this, the provision also specifically exempts circumvention of technological measures for the purpose of certain activities like encryption research, lawful investigation, security testing of a computer system or a computer network with the authorization of its owner or operator, protection of privacy, and measures necessary in the interest of national security. Section 65B (i) on the other hand, provides that, if any person knowingly removes or alters any rights management information without authority, he shall be imprisoned for a period of two years and shall also be liable for fine. Similarly under Section 65B (ii) distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. If we compare the two, Section 65B takes a stricter approach when it does not provide any explicit exceptions. And secondly, it also provides for additional availability of civil remedies.
If we compare these provisions with the law in United States under the Digital Millennium Copyright Act ((17 U.S.C. 1201 (Text can be accessed on http://www.copyright.gov/legislation/dmca.pdf (last visited 7th of February, 2013).))[hereinafter, referred to as DMCA] it provides for both access control as well as the use control. It not only prohibits actual circumvention but also preparation for the same in case of access control. On the other hand as far as controlling the use of the work only preparatory activities are prohibited ((See 17 U.S.C. 1201(2)(a) and (b)(1), ibid.)). Similar kind of law can be seen in Europe under Article 6 and Article 7 of the Information Society Directive of 2001 (hereinafter, referred to as Directive] ((Information Society Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society, 2001/29/EC (Text can be accessed on last visited on 8th of February, 2013 at the official EU webpage http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:NOT)). The significant difference is that it gives a very broad interpretation of terms “effective” and “technological measures”, thereby extending the anti-circumvention protection to nearly all kinds of access/use protection measures in existence today. In that sense it can be said to be broader then the DMCA. Unlike the Indian law or the DMCA it does not carve out any specific exceptions and leave the same to be decided as per the national copyright legislations of a member state. The divergent national approaches therefore ranges from protection against copyright infringement to protecting the technological measures per se ((See Scaria, supra note 7.)). Therefore, users who want to use any legitimate copyright expression has to approach the designated authorities and sometimes the courts directly, in the absence of voluntary agreements with the right holder. This reflects the disturbing picture of balancing the interest of copyright users and right holders. It can thus safely be said that the Indian law is not so extensive as compared to DMCA and Directive.
Consequences of adopting these DRM provisions
Though the Indian law is not as extensive as compared to DMCA and Directive yet an account of experience about DRM’s in these jurisdictions would be desirable as they were frontrunners in adoption of the same. Various studies suggest that how draconian and anti-progressive DRM provisions have proven to be. Primary benefit of the same was to provide authors with global protection from piracy in the digital age ((See William J. Clinton, Statement on Signing the Digital Millennium Copyright Act, 2 Pub. Papers 1902-03 (Oct. 28, 1998) also refer to William H. Manz, 5 Federal Copyright Law: The Legislative Histories of the Major Enactments of the 105TH Congress (1999).)). But now its surrounded by numerous issues like curtailed freedom of speech, scientific research, competition in the market and the balance between the user and the right holder ((See Reuven Ashtar, Licensing as Digital Rights Management, From the Advent of The Web to the iPad, 13 Yale J.L. & Tech. 141 (herein the author presents an analysis of how the pre-DMCA regime was better while taking into account, Sony v. Universal, 464 U.S., Feist Publications, Inc. v. Rural telephone Services Co., 499 U.S. 340 (1991), Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, (2003) and Metro-Goldwyn-Mayer Studios, Inc. v Grokster, 545 U.S. 913 (2005). Refer to for a discussion on the detrimental effect of DRM Lohmann Fred Von, Unintended Consequences: Twelve Years under the DMCA (Electronic Frontier Foundation), 2010, https://www.eff.org/sites/default/files/eff-unintended-consequences-12-years_0.pdf (last visited 9th of February, 2012).also refer to Steven P. Calandrillo & Ewa M. Davison, The Dangers of the Digital Millennium Copyright Act: Much Ado About Nothing? 50 WM. & Mary L. Rev. 349 (2008); Jessica Litman, Digital Copyright 122-29 (Promentheus Books 2001); Pamela Samuelson, The U.S. Digital Agenda at WIPO, 37 VA. J. Int’l. L. 369 (1997).)). These studies seem to suggest that decision to incorporate the DRM in the copyright law was hasty, misguided and taken without a proper cost-benefit analysis. Why is it so let’s look at the positive and negative facets of DRM. The economic rationale is that stronger copyright protection would ensure that failure of the market in digital transactions does not happen. The stream of work continues to flow and by ensuring an opportunity to recoup the investment done it ensure the same. Secondly, it enables enterprises to have differential pricing that is offering different consumers – different price – for the same product based on their willingness to purchase. Like, for example, a consumer may only want to purchase a single song instead of the whole album. Thereby, it ensures that products reach a wider population ((See Stan J. Liebowitz, The Myth of Copyright Inefficiency, 32 Regulation 28, 28 (2009) controls, the argument goes, facilitate differential pricing, transactional efficiency, and thus lower prices and greater choices.)). But the answer to same is not so promising reason being whether they will actually do the same. The uncompromising anti-circumvention measures proposed were paired with little proof that such legal protections would provide a necessary and productive accompaniment. The legislation enacted in its wake runs counter to core intellectual property principles. Now let’s have a look at the negative side of the coin, DRM can have social implications most important among them is disturbing the balance under the law of copyright, society and right holder. Indian Copyright Act, 1957 provides for Fair Use provisions like for example use for research is fair use and why it provided for was to avoid the transaction cost that might arise if a researcher has to seek permission from the copyright holders for every research endeavor ((Refer to Landes William M and Posner Richard A., An Economic Analysis of Copyright Law, The Journal of Legal Studies, 18 (2) (1989) 357-369 (for a detailed discussion on the concept of fair dealing).)). Theoretically it may be argued given the wording of Section 65A that it permits the excusable acts provided under the copyright Act, therefore circumvention is possible if it is for research. This is a better provision as compared to DMCA and Directive but nevertheless, it amounts to an increase in the transaction costs for a user. Secondly, user’s ability to circumvent is another issue. Thirdly it gives an incentive to the right holders to place their work under access and use controls. The result would be limited dissemination of information among the users.
Secondly, Critics view this as resulting into capturing of more than the reasonable returns which a competitive market would provide ((See Incidentally, in Grokster’s oral arguments, Justice Souter asserted: “I know perfectly well I could go out and buy a CD and put it on my iPod, but I also know perfectly well that if I can get music on the iPod without buying the CD, that’s what I’m going to do. And I think it’s reasonable to suppose that everybody else would guess that.” Transcript of Oral Argument at 13-18, Metro-Goldwyn-Mayer Studios, Inc., v. Grokster, 545 U.S. 913 (2005) (No. 04-480), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/04-480.pdf. (last visited 4th of Feb., 2013).)). DRM may tempt dominant players to charge consumers more, create barriers to market entry for competitors, and reduce interoperability ((See Jack Shafer, Apple Wants to Own You: Welcome to our Velvet Prison, Say the Boys and Girls from Cupertino, SLATE, Apr. 15, 2010, http://www.slate.com/id/2250993 (last visited 3rd of Feb., 2013) (deploring “the perimeter mines, tank traps, revetments, and glacis Steve Jobs has deployed around these shiny devices to slow software developers to a crawl so he can funnel them through his rapacious toll booth and collect a sweet vig before he’ll let their programs run on your new iDevice.”).)).
Thirdly, there are practical problems in designing proper DRM systems, as controls are more effective at tracking and obstructing use than permitting exemptions ((See Nina Elkin-Koren, Making Room for Consumers Under the DMCA, 22 Berkley Tech. L.J. 1119, 1119-20 (2007).)).
Fourthly, the most prominent attack on DRM is on the basis that it is creating a new para-copyright regime ((See Scaria, Supra Note 7.)). That it is stretching the borders of copyright protection as compared to what was traditionally offered. It is affording protection for the locks along with the content, when ability to access and fully engage information is necessary to enhance new enterprises ((See For example Justin Bieber popularity, http://www.thehindu.com/todays-paper/tp-in-school/justin-bieber-is-most-followed-person-on-twitter/article4337999.ece (last visited 8th of Feb., 2013).)).
Lastly and most importantly, it jeopardizes innovation and competition within the country. Examples can be seen in other countries which had employed DRM provisions that they were misused by firms to stifle competition, which can be damaging particularly for the MSME’s ((For e.g., Lexmark International Inc., v Static Control Components Inc., 387 F. 3d 522 (2004) and Chamberlin Group Inc. v Skylink Technologies Inc., 381 F. 3d 1178 (2004) in these cases an attempt was made to use DRM provision from stopping the competitors from marketing the toner cartridges and to prevent the competitors from entering into the market for remote control devices for garage door opening systems.)). Though such attempts had been thwarted by the judiciary, it still remains a real threat given the liberal approach of courts in India towards the right holders ((Like the recent Ashok Kumar order refer to Vinod Sai, John Doe orders for blocking of websites: Mad dog without a leash?, SpicyIP Blog http://spicyipindia.blogspot.com/2012/01/john-doe-orders-for-blocking-of.html (last visited 9th of February, 2013).)). Adding the time and cost of the proceeding it’s a burden on users. Question therefore is that whether it was necessary to take such a step just to bring the law in compliance with the international treaties, for some minimal additional benefits. It was unnecessary to risk innovation and competition in the market as the information control is likely to hit information dissemination thereby affecting the innovative process in the forms of MSME’s.
This discussion therefore suggests that the need for having DRM provisions under the copyright law requires reconsideration. Instead other kind of strategies like strengthening contributory infringement liability or the use of the Information technology law minus criminal liability can be more desirable rather than excluding the users from information. The experience elsewhere suggests that courts have supported inhibitive licenses and digital locks instead of the primary purpose of information creation and dissemination due to inadequate interpretation of legitimate exceptions. Meaning thereby, the law is unclear which is resulting into unfair advantage ((See http://9to5mac.com/2013/02/06/apple-announces-itunes-store-record-with-25-billion-songs-sold/ (last visited 6th of February, 2013) also see The Federalist No. 62 (Alexander Hamilton or James Madison), available at http://avalon.law.yale.edu/18th_century/fed62 (last visited 4th of February, 2013).))to big firms ((See iTunes now in India, http://www.thehindu.com/todays-paper/tp-business/itunes-now-in-india/article4165386.ece (last visited 8th of February, 2013).))at the cost of industrious and sometimes uninformed masses (MSME’s). Thereby, it needs reconsideration and if not deletion then at least a cautious approach with the DRM provisions is at least desirable.