Introduction:
Copyrights are a set of exclusive rights under the Indian Law, granted to an individual who creates an original work, which gives him the right to publish, right to distribute, right to adapt, right to reproduce, etc. The Copyright Act,1957 (Section 13) grants protection to the creators of original work of authorship such as literary works, dramatics, cinematography films, sound recordings, music and other artistic works. Original means that the work has not been copied from any other source. This protection commences the moment the work is created, and its registration is optional. Copyright registration does not provide any additional rights and is merely a prima facie proof of an entry in respect of the work maintained by the Registrar of Copyrights. If an individual is aggrieved by issues like his copyright being omitted, etc he can appeal for rectification of the register through S.50.
Copyrights law protects the expression of an idea, rather than the idea itself. According to this Act (Section17), the author enjoys sole ownership over his copyright. However, the copyright over subject matter does not last forever, the term of copyright in published work extends to the author’s lifetime plus another sixty years after that.
In India, copyrights provide protection on the economic rights and moral rights of the author’s work. The economic rights refer to those which give the author the right to reproduce or communicate his material to the public, or, to issue copies of his work, or make a film or documentary based on his content. The moral rights protect the author’s integrity. It is the right that prevents all others from falsely claiming authorship over his work and empowers the author to prevent distortion and alterations of his work done with the intention to defame him. The case of Manu Bhandari V. Kala Vikas Motion Pictures Ltd was the first landmark judgement that clarified and put forward the scope of moral rights under the Copyright act.
The Internet is one of man’s profound inventions of the millennium. It can be defined as a global network of interconnections between computers and networks. The internet is comprehensive in nature and no human being can do without it. As we relish the benefits, the internet’s anonymity gives opportunities to miscreants to infringe copyrights. As of now, copyrights have been adopted to protect work on the internet. It protects tangible work which is either written, typed or recorded. Its main motive is to encourage authors to create work on one hand, and on the other hand, make such work reachable to the public.
The Indian jurisdiction over the unlimited territorial internet is still in its developing stages as there is no sovereignty. On 1st January 1995, the TRIPS[1] agreement came into force to provide remedies and a proper procedure to ensure the enforcement of intellectual property rights of a creator. All provisions applicable to the owner of his creation under the Copyright Act,1957 shall be applicable to his ‘digital product’ as well. Therefore, a violation of such ‘digital work’ shall constitute infringement. Yet a common question arises – Can authors and copyright owners effectively protect their rights online?
Copyrights in this Digital Era
The copyright law in history is known to be the legacy of technology. It has gone through constant methodical changes to secure the public interest of imagination and invention. There’s a fine yet overlapping space between the need to incentivise the creator for making his work public and the characteristic feature of the internet which is “the world’s biggest copy machine”. This rigid dichotomy between the notion of “free information” and the urgency for a stronger control over information is a digital dilemma the world is facing. However, it should be noted that infringement may not always be intentional but may be due to ignorance as well.
Infringements
Breaching a creator’s rights over his material is commonly known as copyright infringement. Today, the film and music industry suffers the most amounts of copyright infringement. One type of infringement that commonly happens is ‘Contributory’, where the infringement is indirect and even if you are not responsible for directly breaching an author’s rights, giving access to his material would account for this type of infringement. Vicarious Liability is another way to hold an individual liable even if he has not directly infringed anyone’s rights but at the same time has hired or controlled a third person to do the same.
Nowadays, Internet Service providers(ISP’s), use their servers across the network to store user’s data. This helps the ISP to detect any infringement by a third party, however, if they are caught passing on copyrighted material illegally they will be held liable for transmission and for storing it as well. The same goes for the Bulletin Board Service (BBS), Commercial Websites and Private Domains which helps people share or exchange messages and file on a network.
Online copyright issues
It is important to understand that there is a relationship between the IT Act (2000)[2] and copyrights. This act is considered a “special act” and the courts have the jurisdiction to meet the challenges of technology and the provisions of copyrights. However, this enforcement is difficult and tedious and if a case arises where there is no meeting point and impossible to reconcile the two, the IT act being a “special act”, would overrule the jurisdiction procedures of the court. One such example would be the ISP, where under the Copyright Act they are held liable for transmitting data stored, the “special act” provides that they would not be held liable if this transmission was done unknowingly.
Copyright Protection on the Internet in India
Copyright owners often appraise the online mediums as a curse more than a blessing. However, Indian authors and copyright owners can effectively protect their rights online. In India, if a citizen’s right has been violated over the internet, by virtue of S.62(2) of the Copyright Act, the courts have the jurisdiction to take on the case.
The Berne Convention provides a platform for all countries that are members to protect copyrights. Hence, India being a member, receives the protection of all work first published in India through treaties and conventions. With the growth and development of technology, the entire world has recognized the need for a Digital Copyright Law. In 1996, over 50 countries came together to form the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty. On 28th October 1998, President of the United States, Bill Clinton, enacted the Digital Millennium Copyright Act (DMCA), in compliance with the treaties, to update copyright laws in order to deal with special challenges over digital material. India, being a member, acceded to these treaties in 2016 as it would help Indians get reciprocal protection of their intellectual property abroad.
In 2016, there was a memo issued by The Department of Industrial Policy and Promotion saying that the Copyright Act covers the content on the internet as well. In addition to that, the IT Act has provisions of the DMCA which ensures that online platforms take down copyrighted content off their website after being provided notice. India is in constant compliance with WIPO’s internet treaties. These treaties empower copyright holders to bring into action software that would make it difficult to create copies of online material. Software’s like the Digital Rights Management (DRM) software has certain applications that prevent a CD/document from being copied or restrictions on the use of products on a particular device and many more which we generally have come across in our day-to-day life. Today, tools like encryption and watermarks are commonly used. The government believes that signing these treaties will help India generate confidence among creators to distribute their work in this digital environment with a return on investment.
The Amendment of 2012
2012 saw some major changes in The Copyright Act,1957. Two new Sections of 65A and 65B were added via the Amendment of 2012 which essentially harmonized the copyright regime with the ‘Internet Treaties’, making India capable of facing challenges posed by digital technologies. These newly added sections provided protection against dodging of technological measures and protection of information identifying the author and his work respectively. Leaving aside certain exemptions, according to 65A, if a person finds his way around any technological measure effectively applied for the purpose of protecting copyrights, with the intention of copyright infringement, will be punished with imprisonment up to two years along with a fine. 65B states that if an individual knowingly removes or alters any electronic information of identification without authority, and distributes, broadcasts or communicates it to the public, shall be punished with imprisonment again up to two years along with a fine. In simple terms, any unauthorized and intentional removal or alteration of electronic information, such as the name of the performer/author, or his signature/logo on his work, is a criminal offence. An example of such information is a digital watermark that authenticates the source of the photograph.
The introduction of these sections, along with harmonising copyright laws, also aims at fighting against piracy in the film, music and publishing industry. However, in order to achieve the mentioned objectives, a well-equipped legal system and effective enforcement of laws is required.
UTV Software Communication Ltd v/s 1337x and Ors on 10th April 2019- Delhi HC
The plaintiff of this case – UTV software communication Ltd, and others, are companies that engage in content creation, production and distribution of films in India and other parts of the world. The defendants were 30 websites which included Ministries and Departments of Electronics, Information Technology, Telecom and various others. The plaintiff claimed that the defendants’ websites provided access to their copyrighted work, thus, resulting in the infringement of the plaintiff’s copyright. The Court appointed an ‘amicus curiae’, Mr Hemant Singh, to aid the court in determining the case. The Court raised a question whether an infringer of Copyright on the internet is to be treated differently from an infringer in the physical world?
The Court held that if a crime exists in a physical world, then there is no reason why it should not be a crime in a digital world especially when the Copyright Act does not make such a distinction. Therefore, the court opined that the main issue about Internet freedom is not about whether the internet should be completely free or whether the government should have unlimited control, but rather where should this line be drawn, how is going to be drawn and how is it going to be implemented.
Conclusion
Even though digitalisation has given opportunities to the creators to showcase their work effectively, it has also raised concerns for infringement of the owners’ rights. A lot of efforts are being made both on a National and International level to overcome these obstacles so as to protect copyrights in the digital arena, however, there is a lot that still needs to be done. In India, it is necessary to create awareness among people, train enforcement agencies and develop proper mechanisms to take action against infringement. It has become critical to update the legal system, as a response to new technology developments, in an effective way. Authors and creators should be motivated to publish their material on a public platform and the Internet should be turned into a blessing and not a curse.
References:
[1] The Trade related aspects of Intellectual Property Rights.
[2] Information Technology Act, 2000
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