Ipsita Mishra, NLU, Odisha
All or any substantial part of the work is prevented from copying. The substantial part of the work includes mainly the quality of work rather than the quantity. There can be copyright infringement where only a small portion of the work is copied but the portion is of great qualitative importance in the original ((Janus v. A & M Records. , 827 F. Supp. 282 (D.N.J. 1993).)). Unconscious copying of the work may amount to infringement ((Bright Tunes Music Corp. v. Harrisongs Music Ltd. , (1976), 420 F. Supp. 177)).
There are two main types of copyright infringement. The first is direct infringement, where the defendant has copied the whole or a substantial part of the work. The second is contributory infringement, where the defendant has authorized another to make infringing copies of the work ((Section 3(1) and 27(1), Copyright Act, 1985 [Hereinafter as 1985 Act].)). What amounts to “authorizing” another to make infringing copies will depend on the facts of each case ((Roger T. Hughes & Susan J. Peacock, Hughes on Copyright and Industrial Design 545 ( 1995).)).
There are two main types of copyright infringement. The first is direct infringement, where the defendant has copied the whole or a substantial part of the work. The second is contributory infringement, where the defendant has authorized another to make infringing copies of the work ((1985 Act, supra note 3.)).
Materials available on the net are subject to infringement when they are downloaded without the permission of its creator. In software field, it is popularly known as ‘online piracy’, when software is downloaded from the web and installed but not paid for ((Ian J.lloyd, Information Technology law 39 (3rd ed., 2000).)). Though password system is introduced, those passwords are also decoded by suing dubious techniques. The following are some of the new ways of infringement:
i. Catching and proxy catching ((46 S.M Bhaskar & R.C Tripathi, The Electronic Transactions and Intellectual Property Rights: A leed for Digital time sampling 208 (2004) [Hereinafter as Electronic Transactions and Intellectual Property])).
Catching is storing of web pages in computers memory at user level or server level. It is the service provided on which the website is stored on automatically. It makes a copy of it and holds it accessible for the user’s computer where it is stored by the web browser software either in the RAM, the hard drive or any other storage facility. Proxy catching takes place where user’s service provider might keep a copy of the site in order to provide fast access to that page for te next time to one of his clients who wishes to access this site. When the author’s work, the web site, is reproduced several times there may be infringing acts.
ii. Providing links ((Electronic Transactions and Intellectual Property, Id.)).
HTTP as such facilities linking of one web site with another the knowledge or consent of the owner of the linked website. Linking raises questions whether the link provider is liable for infringement or not is discussed in Shetland Times Ltd Vs Dr. Jonathon Wills.
It was held that the ‘linking’ alone does not constitute infringement. Regardless of any provisions of copyright law, there is no barrier to prevent the site owners permitting others to link to their materials. Regardless of whether sites are designed for academic, commercial or personal purposes, it will be a rare site developer who does not wish to receive “visitors”.
There is an argument that the materials available on the net are in the public domain since the creator of such work posted that work to the Internet to make it available freely, to anyone without restriction. But this argument cannot be regarded as correct as to download or to reproduce the material, one ought to obtain license (which should be in the written form) from the owner of such copyrighted material. Therefore it can be said that unregulated copying on the net amounts to copyright infringement.
INFRINGEMENT LIABILITY OF INTERNET SERVICE PROVIDERS AND HOSTS:
ISP is the collective voice of the ISP fraternity and by extension the entire Internet community. Over the years ISP has helped influence, shape and moulds the telecom policies, so that ISPs and entrepreneurs in the business of Internet can setup and grow their services in an environment that is supportive and enabling. In the last 10 years of its existence, it has been party to breaking down monopolistic structures in telecom, bringing down barriers to entry for ISPs. It helped shape India from being a bandwidth hungry to a bandwidth surplus country. it was the competitive spirit of the ISP members of ISP that, Internet access became so widely and cost effectively available to our countrymen. These very ISPs helped connect India to the rest of the world so effectively that today BPO and Call Centers cannot but make their global presence felt based on IP connectivity. India is today is arguably amongst the top 10 countries of the world in terms of the number of Internet users. Today ISP is the recognized apex body of Indian ISPs worldwide. ISPAI has access to and interacts frequently with international bodies and platforms and is frequently consulted by them on measures for future trends and growth of Internet. It works closely with the Government, the Regulator as well as the major Industry Chambers. It supports exchange of delegations, business visitors from across the globe which provides ISP members a chance to network widely and seek opportunities elsewhere too. It’s a platform for the Solution Provider’s community such as Hardware and Software manufacturers and suppliers to gain easy access to their ISP clients, promote their products and services through personal meetings and through events supported or sponsored by ISP.
Liability for the copyright infringement on the Net can fall upon the infringer himself or upon the Internet Service Provider (ISP). ISPs can be brought under the provision of section 51(a)(ii) of the Copyright Act,1957 for the online copyright infringement. According to this section, if an person “permits for profit” another person to use “any place” to communicate constitutes infringement, or facilities such infringement under certain conditions, such person may be held liable for such an act.
The provisions relating to the ISPs are specifically enumerated in the Information Technology Act, 2000 which an Internet service provider is referred to as ‘internet service provider’. The Act specifically imposes liability on the ISPs, interlia, for the copyright infringement. Accordingly, an ISP may be held liable for any third party information or data made available to him by any other person. He can escape from liability, if he proves the offence or contravention was committed without his knowledge or he had exercised all due diligence to prevent such violation of copyright ((Section 79(1), Information Technology Act,2000 [Hereinafter as IT ACT].)).
Section 43(a) of the IT Act is designed to prevent such persons from infringing acts. According to this section, if any person accesses or secures access to a computer , computer system or computer network or downloads ,copies, extracts any data, database or information from it, including information or data held or stored in any other medium, without permission of the owner or any other person who is in charge of it, he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected which is deterrent enough to prevent copyright violation.
The liability under Copyright Act falls under two categories: Civil and criminal .As for as the former is concerned; the remedies may be injunction, damages or accounts for profits. In the case of the latter, normally, imprisonment for a term between six months and three years can be imposed. In addition to this the fine amount between fifty thousand and two lakhs shall also be imposed upon the infringer ((Copyright Act,1957, Section 53(A).)).
Internet Service Providers (“ISPs”) can act as hosts storing information posted by a subscriber. ISPs also act as a conduit for messages between users, the transmission of which necessarily involves the copying of the message along the way and at the destination’s electronic mailbox. Unless the transmission is permitted, the transmission of a file over the Internet and subsequent “copying” onto a users machine may constitute “authorizing” copyright infringement by the person who transmits the file (For an analogy to TV cable companies authorizing infringement ((C.C.T.A. v. Canada). (1993), 46 C.P.R)).
It has been suggested that under Canadian copyright law the transmission of a file containing a musical work over the Internet might be a performance “in public”. Since a “performance” must be a visual or acoustic representation of the work, unless the transmission over the Internet is “real-time” and not merely the transmission of a file for later “playing”, such activity is more likely to be found to be a communication of the work to the public by telecommunication.
In US, the ‘service provider’ means an entity offering the transmission, routing or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received ((17 USC 512(K)(1).)). In India, ‘network service provider’ means an intermediary ((IT ACT, supra note 9, section 79)).
Types of liability:
i. Direct liability: if any exclusive right of copyright owner is infringed
ii. Vicarious liability: when a person has a duty to prevent infringement and he can do but he prevents doing it and moreover benefits from it
iii. Contributory liability: when a person has knowledge of the infringing activity and participates in the act of direct infringement
Section 512 of Online Copyright Infringement Liability Limitation creates five categories for which liability of an ISP may be limited:
i. Digital Network Communications
ii. Disabling of access to, or removal of infringing material
iii. Information location tools
iv. System caching
v. Storage of information on systems
INCORPORATION OF DMCA IN THE COPYRIGHT ACT 1957
Copyright law reinforces the power of DRM systems through the Digital Millennium Copyright Act (“DMCA”), In general, the DMCA seeks to forbid the circumvention of a DRM system – defined as “a technological measure that effectively controls access to a work protected [by copyright law].” It also outlaws development or trafficking of any DRM circumvention device or technology. The provision of DMCA is vested in copyright act 1957 in section 65A and 65 B by latest 2012 amendment of copyright act.
The question which arises is whether the evolution of DMCA has resulted into the death of copyright act? This does not mean that copyright has or will become irrelevant to the protection of creative works in countries where DMCA is in progress but it would add extra protection , it would do away with all the gaps which was left by copyright act to protect the digital content.
In India section 65A and 65 B is working for the better protection of digital content because author has spent a lot of hard work and money for creation of the work so stringent protection is also required because transmission of digital content is not an herculean task anybody can do it sitting any part of the world .
In my view the DMCA has not resulted into death of copyright act because DMCA would just add on an extra protection it would not result or end up letting to the death of other protection.
Copyright is established by federal statute in Canada and the United States ((1985 Act, supra note 3)). These statutes set out a variety of related rights which belong to the copyright holder:
the right to stop infringement by copying the whole or a substantial part of the work ((1985 Act, Id, section 3(l).)).
the right to record a literary, dramatic or musical work where the record is mechanically performed, or delivered ((1985 Act, Id, section 3(l)(d).));
the right to communicate a work to the public by telecommunications ((1985 Act, Id, section 3(l)(f).)).
the right to import a work for selling or hire ((1985 Act, Id, section 44));
in respect of computer software, the right to rent out a computer program ((1985 Act, Id, section 3(l)(h).));
in respect of artistic works, the right to present a work at a public exhibition ((1985 Act, Id, section 3(l)(g).)); and
in the United States, the right to prepare derivative works ((Copyright Act , 17 U.S.C.A., section106(2).));
Earlier copyright was given to the authors/publishers of the books. Later it was enormously extended to cover many intellectual creations like paintings, sculptors, musical works , the latest being computer program ((Sec. 2(Ffc), Copyright Act 1957)).
The materials available on the internet must pass the test of originality in order to claim copyright over it. Neither registration nor a claim to copyright in the work requires to be expressly made, nor needs some reasonable notice asserting the claim to copyright in work to be made. Thus, copyright subsists in all materials available on the internet ((C.B Raju, Intellectual Property Rights (1st ed., 2007).)).
Guten Berg’s printing technology of 1450, which mothered the publishing industry, also raised the first major challenge to the copyright regime. Most significant of the challenges faced by the copyright law is the emergence of the digital information technology, more particularly the Internet.
Since net is the world’s largest repository of information, many copyright works are available on internet. Foremost and the most significant among them is the ‘Computer Software’. Besides this news stories, screenplay, pictures, graphics, html, urml and unique markup language sequences, list of websites are copyrightable on the net. Therefore, the reality is everything on net is protected by copyright law.
DIGITAL RIGHTS MANAGEMENT:
It is under copyright because you are going to maintain rights over culture. The new concept originated in 1998-99. When the digital information came to being, this right emerged because digital data is very easy to copy and thus infringes copyright. It is a new kind of era where data is being passed very easily in digital form. New copying is only the work of pressing 2-3 keys only. The cause of concern for the publishers was they wanted their work to be sold to few persons and to be copied illegally after that, and this kind of things can be done very easily with the Cds. Various countries provided various arguments for this heavy debate during framing of WCT and WPPT and thus finally DRM was introduced.
Infringement in such cases will be at two levels:
i. Any person can access the material
ii. The person who has it will make copies and sell it to many people .Under this we may have alteration, hampering moral rights etc.
Digital Rights Management is a kind of process through which we manage digital content. Through this, rights are protected in digital work. DRM is a management not the means. It is a concept but it is not under WCT/WPPT.
Aspects of DRM:
I. Technological Protection Measures(TPM)
II. Right Management Information
TPM is any technological device or tools that prevent unauthorized or illegal access to or copying or reproduction of copying material.
The two categories of TPM:
- Access Control- TPMs prevent unauthorized access to materials. For example Access key required for accessing some software. Moreover you can access it for one time only like that of antivirus software.
- Copy control-only one person can use it. You can access it and only you can sue it with the key. You cannot copy it after that except for back up. E.g., there are some encrypted songs CDs which cannot copy paste. If you want to play those songs, you have to insert the CD.
If there is no protection, certainly everyone will copy. There is loss to copyright owner and owners of companies publishing it. Even the fact that your email cannot be hacked comes under DRM. DRM is like a igital lock, whoever has the key can access it. Whatever material is in digital form will be protected even if it is copyrightable or not.
Types of keys:
a) Use of dongle- a piece of hardware that will contain an electronic serial number that has to be attached to the PC to enable software to run.
b) Use of registration key- when we use free ware, it is only trail version. After 30 days registration key is required.
c) Use of internet product activation- even if you have registration key, you have to connect to internet to install software. You have to enter a number in the website, which will alter to the owner of the software that you are buying same number then it cannot be used by any user.
d) Use of encryption- this technology is usually in DVD. After encryption you can only run the DVD. You cannot copy it.
e) Use of digital watermark- it is a digital or pattern inserted into a digital image . A gien watermark may be unique to each copy or to be common to multiple copies.
Cons of TPM with respect to Copyright law:
– When you purchase something, doctrine of first sale, you own right over your copy. But TPM prevents you from even making copy to your own desktop which is inconvenient.
– It is against the fair use principle.
Exceptions under TPM:
Section 107 of US Act and Section 65B of the Indian Copyright Act.
- For educational purposes:
This exception will not be available on original product but on the decodified copy made by someone and he has to use it for educational purpose. For example a book in almirah and if the kwy is with me, here I can use the book for fair use and whoever makes the duplicate copy will be liable. However if the book is in the library one can directly take the book and make photocopy.
The difficulty is when you have to search for software or the person who can decode the CD. Then the person decodifying and the one using can take defense of educational purpose. There is also a law that for educational purposes you can ask company for copy, it has to give you an encrypted copy.
- Assisting persons with disability:
- Library and educational institutions
The only limitation is that it is only used by students and teachers and staff of the university. Even if they make the entire library online, they first need to purchase software which would only make books available to members of that university.
- Inter operability:
Suppose there is need for interoperability of two computer programs and TPM is a barrier, it can be circumvented provision of TPM can be diluted. Not everyone can do only experts can do. E.g.- gadgets
- Encryption research :
For reverse engineering or research, TPM can be used.
- Computer security testing:
TPM can be used for this and it is a permissible use.
WCT AND INDIAN LAW:
WCT Article 11, 12: Obligations concerning technological measures. The provision doesnot provide for technological measure. It says it is the work of the author to protect his work.
Obligations concerning right management information: Right management information is for anyone. If the information is in digital form, you could want to protect it. Mostly for works that does not go public but for secrecy and privacy point of view. So software shall protect information maintained in digital form (Article 12, WCT)
For example, any photographs you place on the internet will be protected in the same way as other artistic works; any original written work will be protected as a literary work, and so on. If you download, distribute or put material on the internet that belongs to others you should ensure that you have the owner’s permission, unless any of the exceptions apply.
Just owning or buying a copy of original or copyright work does not give the person the right to use the work the way he wants. Permission is generally required in different everyday uses of copyright work, like scanning, photocopying, downloading from CD-ROM etc where copying is done Beyond an agreed license, further permission is required ((Jane Coyle, Copyright and the Internet ( 25 September 2008).)). The legal framework for digital content Intellectual Property Rights in the European Union was established by the Directive on the Harmonization of Copyright and Related Rights in the Information Society. Stakeholders should continue work on open standards. EC programmes cover IST research and E-content programme.
The Emerging standards are those of Digital Property Rights Language (early Xerox research), Electronic Book Exchange, Extensible Access Control Markup Language, Secure Digital Music Initiative, Open Ebook Forum etc.
INDICARE stands for Informed Dialogue about Consumer Acceptability of Digital Rights Management Solutions and deals with fair contract terms, access to usage of contents, library concerns, science and higher education concerns, transparency, flexibility in business models etc.
Article 5 of European Copyright Directive deals with consumer interests and Article 6 deals with protection of technological measures and consumer protection laws.