INTRODUCTION
Theft has prevailed in the world for a very long time. Rise of technology has developed a new kind of theft. This isn’t physical but in the form of online infringement and piracy. The work produced by the creators is copied and distributed through the internet in an unethical manner. This problem is more serious in India. There are many film industries in India and they are known to produce a large number of films every year. This situation gives a big rise on online copyright infringement.
Copyright is a form of Intellectual Property Right which gives the original creator of the work created, the right over the ownership of the work and its payment. The control over distribution or assignment of their work also falls on these creators.
ONLINE COPYRIGHT INFRINGEMENT IN BRIEF
Copyright is a protection given to creators of a certain type of works as a tribute and an acknowledgement to their creative intellectual input and labour apply.[1] Copyright infringement is dealt with under The Copyright Act,1957 (as amend by the Copyright Amendment Act, 2012). Section 13 of the Act, protects the copyright conferred on literary works, dramatic works, musical works, artistic works, cinematograph films, and sound recordings. The protection is classified under the following two specialised categories of rights –
- Economic Rights: These rights are to oversee that the author or the creator of the work get the monetary benefits of their work. These rights are prevalent in various forms since the fifteenth century.[2] It includes judicial interpretation of reproduction rights, right of distribution and right to communicate work to the public.
- Moral Rights: Section 57 of the Act and is in accordance with Article 6b is of the Berne Convention. Moral rights are further divide into right of paternity and right of integrity. The right of paternity helps the author to claim his ownership and prevent any other person from claiming it. Whereas, the right of integrity restricts any ‘distortion, mutilation or other alterations of his work, or any other action in relation to said work’ which may damage his reputation. Amar Nath Sehgal v. Union of India[3] was the pioneer case in India where moral rights of an author was upheld and the damages were awarded to him.
PIRACY
Online piracy could be compare to an online theft. It occurs when someone records, copies, sell and distribute an original work without the permission of the author of that work. Piracy can lead to big economic impact on the authorised author of the work leading to heavy losses. In a country like India, demand for pirated work is a lot as they may be cheaper to obtain and easier to access. It is a form of an online copyright infringement.
PENALTY FOR PIRACY
The Copyright Act, 1957 and the Information Technology Act, 2000 are the main legislations to deal with the penalty for crimes and offences related to piracy.
As per the Copyright Act, 1957, if someone has access to a computer program; which is pirate or manufacture or acquire through copyright infringement. Then he will be liable for imprisonment of a minimum of seven days, extending up to three years and a fine. It shall not be less than fifty thousand Indian Rupees (INR 50,000). Also may extend up to three lakhs Indian Rupees (INR 3,000,00)
As per the IT Act, If a person gains access to a computer, a network of computers, or computer systems. Then proceeds to view, copy and extract the data present on the computer. Either through digital means or through a removable storage medium, without prior permission from the owner of the computer. He is liable to pay damages as compensation which can go up to a sum of Rs. 1 crore. Any person who downloads said stolen data will also be liable for the same amount.[4]
JOHN DOE ORDER
A John Doe order is an injunction which is sought against an unknown person at the time of the issuance of the order. It enables mass action against anyone who is to be infringing their IP rights. In India, John Doe orders are govern by Order 39, rules 1 and 2 of the Civil Procedure Code, 1908 (CPC). It is read with section 151 of the CPC and the provisions of the Specific Relief Act,1963 relate to permanent injunctions. It is commonly grant by the Indian courts in case of online piracy in music, film and software industry. Taj Television & Anr. v Rajan Mandal & Ors[5]. was the first case where the Delhi High Court passed John Doe Order
FACILITATION OF ONLINE COPYRIGHT INFRINGEMENT
Internet Service Providers (ISP) could be label as the biggest facilitator of Piracy or Online Copyright infringement in the whole world. With the increase the technology, a large increase in infringement is to be seen via ISPs. Many websites showcase pirated contents such as movies and songs. These contents are sometimes free and are very easily accessible. Such contents are very popular amongst today’s generation. The government have time and again warned the ISPs to block such sites. However, it is still widely available. Growth of the internet has risen online copyright infringement which has, in turn, affected the owners of the economically.[6]
India does not have any specific legislation to procure liability on the ISPs but it can still be discussed under both in Indian Copyright Act and the IT Act.
I. Indian Copyright Act, 1957:
As per Section 51(a)(ii) of the Copyright Act;
“Copyright in a work shall be deem to be infringe, when any person, without a licence grant by the owner of the Copyright or the Registrar of Copyrights under this Act. Or in contravention of the conditions of a licence so grant or of any condition impose by a competent authority under this Act permits for profit any place to be use for the communication of the work to the public. Where such communication constitutes an infringement of the copyright in the work unless he was not aware. And have no reasonable ground for believing that such communication to the public will be an infringement of copyright.”
The ISPs facilitate infringement by allowing the website servers to save and further transmit the work through its service. It also comes under the abovementioned section as this act “permits for-profit”. ISPs benefit economically through these activities. They can profit even by the advertisements which are place along with the infringe content.
Section 63 of the 1957 Copyright Act states that the following requirements are necessary for being criminally liable under this Act:
“Any person who knowingly infringes or abets the infringement of,
(a) the copyright in a work, or
(b) any other right conferred by this Act,
shall be punishable with imprisonment which may extend to one year, or with fine, or with both.”
The loophole in favour of the ISPs is the defence of committing the act unknowingly. If the service providers prove that they were unaware of the harm that was cause to the author, then the section will not be applicable to them.
II. Information Technology Act, 2000
The IT Act deals with the ISPs to some extent. It is refer to as “Network service provider” in the Act. According to S. 79 (a) of the Act, a Network Service Provider means an “Intermediary”. An Intermediary again is define under Section 2(w) as “any person who on behalf of another person receives, stores, or transmits that message or provides any service with respect to that message.”
Further, Section 79 in Chapter XII of the Act, which deals with cases where Network Service Providers are not to be liable states:
“For the removal of doubts, it is hereby declare that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was commit without his knowledge or that he had exercise all due diligence to prevent the commission of such offence or contravention”.
Therefore, if the ISPs will prove of not having knowledge of the Act and that proper due diligence will carry for prevention of such infringement then the service providers may get excused under Section 79 of the IT Act.
The cases related to facilitation of online copyright infringement through ISPs are quite prevalent in European and American courts. However, both courts have very just legislation in favour of both service providers and content owners. Neither countries hold the ISPs liable unless they are expressly notified of the alleged infringement.
CONCLUSION
Many efforts are put throughout the world to curb online copyright infringement but it still has a very strong hold in our society. These thefts are extremely unfair for the creators of works. They, unfortunately, have to face a lot of monetary losses.
The lawmakers have to define the liability of the ISPs in a clear and non- ambiguous manner. Therefore, it is of utmost necessity to include clear laws against facilitating online copyright infringement in the statutes like the Indian Copyright Act, 1957 and the Information Technology Act, 2000.
References:
[1] This is known as the ‘Doctrine of Sweat of the Brow’, whereby a work is given copyright protection if the author has applied ‘labour, skill or judgment’ in creating the work irrespective of the level of originality in the work. Evolved from the decision in Ladbroke v William Hill, [1964] 1 All E.R. 465.
[2] Sterling J A L, World Copyright Law (Sweet & Maxwell, 100 Avenue Road, London NW3 3PF), 1998, p.279.
[3] 2005 (30) PTC 253 (Del)
[4] Section 43 of the Information Technology Act.
[5] 2003 FSR 22
[6] House Judiciary Comm Hearing on WIPO Treaty & Online Copyright Legislation, September, 1997, at 117 (prepared statement of Ken Wasch, President, Software Publishers Association).
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