Introduction:
A Copyright is defined as “the exclusive legal right to reproduce, publish, sell or distribute the matter and form of something (such as a literary, musical or artistic work).”[1] In simpler terms, it is a protection that secures a person’s unique creation from being copied by someone else and tagging it as their own. It is a package of rights that involves the right to re-create, the right to communicate the work to the public, the right to adaptation, the right to translate the work, etc.
Copyright provides legal ownership of the work to the author and authorizes him to transfer such rights. Such rights are necessary to safeguard the earnest efforts of the creator and also to promote innovation & creativity which in no doubt creates room for the invention of brilliant ideas. A country is said to be renowned if there is a good level of intellectual creations as it directly contributes to enriching the national cultural heritage of a nation. It can also be deduced from the case of Eastern Book Company v. D.B. Modak,[2] wherein the Supreme Court opined that “copyright assures authors the right to their original expression but encourages others to build freely upon the ideas and information conveyed by a work.”
It can also be observed from the plethora of judgments given by the Indian Judiciary highlighting the importance of the Copyright law. For instance, in Holy Faith International v. Dr. Shiv K. Kumar,[3] the High Court of Andhra Pradesh observed that, “the primary function of a copyright law is to protect the fruits of a man’s work, labor, skill or test from annexation by other people.” And in another case, S. Mahalingam v. Vasan Publications Pvt. Ltd.,[4] the Madras High Court held that “the object of the Copyright Actis to protect the author of the work from the possible fraudulent reproduction of the work without his permission. The author being the creator of the work, by using his talents, skill and knowledge must be in a position to enjoy the benefits of such creation.”
From the past two decades, there has been expeditious growth in the realm of Information Technology and with the inventions of computer software, programs, databases, internet, cyberspace, and most crucial of all, social media has raised new difficulties, challenging the concepts of Copyright law. A positive point of which is that, it had made the availability and access to the material originally published easier but at the cost of simplification in the process of piracy/replication and selling such copies without the consent of the author/creator infringing his Copyright. Internet & Social Media are the two most threatening factors, by the reason of which the term “Digital Copyright” has evolved. Today, Copyright law is not only about the rights of the author but has become a matter of public interest due to the expansion of digitalization in the world.
Background of Copyright Law in India
The Copyright Act of 1957 governs all the matters related to Copyright issues in India. This was the first legislation for the subject of Copyrights after the independence of the country which has been amended six times since enacted, with the latest amendment made in 2012. Before 1957, the British had two enactments pertaining to Copyrights.
First was the British Copyright Act, 1911 which was very short and concise as compared to the present law. Second was the one enacted by the Indian Legislature under the rule of the British in 1914 and was named as the Indian Copyright, 1914. This Act unlike the previous one provided for the imposition of criminal liability in case of infringement of the Copyright. The Act of 1957 was made in conformity to the provisions of the Berne Convention for the protection of Literary and Artistic Works of 1886 and also safeguarded the work created & protected under the Act of 1914.[5]
At present matters pertaining to Copyrights in India are governed by the Copyright Act, 1957 [hereinafter “the Act”]. The Amendment given to the act in the year 1994 recognized the technological changes and involved the prospects of broadcasting & telecasting. Further, the 1999 Amendment made the Act conform to the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement particularly on the doctrine of Fair Use. And last, the Amendment of 2012 was the most significant amendment as it not only strengthens the laws against challenges of the Internet but also provided for its further scope. It followed the principles of the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT). The Indian Copyright Act, 1957 after all these amendments was termed to be a “forward-looking piece of legislation” and that the Act is capable enough to counter the challenges posed by the Internet in the digital dominion.[6]
Situation of Copyrights in the Digital Dominion
In the 21st Century and moving forward, a man’s greatest asset and worst liability is his access to the Internet or Information Technology (IT) or the Digital Dominion. Advancements in IT sect have in no doubt created a pool of opportunities to showcase one’s talent and reach out to the public at large but as regards the protection of the originality of the work, it has also imposed many challenges which threatens the rights of the copyright owners. Some of the reasons are as follows:
- Fast, easy & cost-efficient access to a Global Network.
- No restrictions upon reaching or distributing such a widespread audience.
- It is nearly impossible to make a distinction between a copied material and the original one.
Every sort of work or creation is available on the Internet today which involves all the computer software & programs, multimedia works, literary articles, and many more. Any material, none whatsoever can be easily downloaded and uploaded through a number of websites & channels upon on the World Wide Web without even bearing any kind of cost. The rapidly growing demand for developments in the IT industry is one major reason for the increase in the number of legal disputes involving infringement of Copyright. The complexity in the adjudication of the matters has also increased as the legislatures, courts & even international organizations are finding difficulties in dealing with the challenges that the Internet has posed for Copyright Law.
Following is some statistical data which indicates the piracy levels around the world:
- Over 200 billion views per year are received on the pirated videos all around the world.[7]
- Around 24% of the global bandwidth is taken up in the illegal downloading of the content.[8]
- Around 38% of the software’s used in computers/laptops are pirated.[9]
- Around 70% of the young population is engaged in online piracy and illegal uploading and downloading of the materials.[10]
- Around $70 billion loss is incurred by the movie industry globally.[11]
The above data makes it clear that it is not only the rights of the owner but also the worldwide economy which is adversely affected due to the infringements of Copyrights. The issues of Copyright in the digital domain have remained in neglect and still, there are many questions that are to be answered yet. The usage of the Internet has expanded to unknown extents and with that, the reproduction and reselling of the original works have also increased exponentially. It was the statement of Peter Cossack, the president of Cyber Security Services at Irdeto that, “While the increase in bandwidth and social media has facilitated growth in content redistribution piracy, particularly around live sporting events, it is clear that other forms of piracy are not going away anytime soon. This must be considered by content owners and rights holders in their security strategies.”[12]
The issue of infringement of Copyright at present-day is not restricted to only literature, arts, and multimedia industry but it has also expanded on subjects of sports & gaming too. It shall be understood that though industries that may be affected are the same but how these industries have evolved through technology is the main concern. For example, in earlier days, if there was an issue of movie piracy, the loss was accounted only in regard to the effect of loss of the audience of theatres and cinema halls. But today, with the new trend of music & OTT platforms the scope for piracy & illegal means of communication has also increased. There are thousands of cases of stolen log-in details for such OTT platforms through the dark web. To talk about the most grossing platform Netflix, there have been various hacks and tricks to get the subscription at minimal prices or even at free. In a survey in 2017, it was noted that about 854 credentials were sold by 69 different sellers on over more than 15 dark web market places per month.[13] These credentials included services of Netflix, HBO, etc.
Technology is advancing a lot faster than it is coming to the notice of experts. Mark Mulready, the vice president of Cyber Security services in the same survey stated that, “Content theft by pirates has become a full-fledged criminal enterprise, with some providing illegal subscriptions in an attempt to compete the established pay-TV operators. Content owners, right holders, technology and security partners, and law enforcement agencies are working hard to combat the threat of piracy.”[14] Awareness regarding the same is also necessary as it has become common thinking of the people that the material available on the Internet is free to copy. This myth has been continuously promoted by the Social Media users. Social Media has gradually developed to become a new place to commit crimes. Sharing of images, videos, news, audios, software, etc. considering it to be free has resulted in major violations of Copyright.
Reality Check: Are the present laws enough?
There are numerous legislations, conventions, and treaties which have been enacted for the betterment of the Copyright law. At International Level, World Intellectual Property Organisation (WIPO) has played a crucial role in enacting some of the most effective laws, listed as follows:
- The Berne Convention, 12th May 1858
- WIPO Copyright Treaty (WCT), 6th March 2002
- WIPO Performances & Phonogram Treaty (WPPT), 12th May 2002
Both WCT & WPPT were termed as “Internet Treaties” as their main purpose was to counter the challenges posed by the digital domain in order to protect the interests of the owners as well as the public. These treaties aimed to revise the already existing conventions so as to conform to the new developments of technology and give solutions to the problems of distribution of protected work on the internet. Two main provisions to deal with the same were instituted namely, Technological Protection Measures (TPM) and Rights Management Information (RMI).
Under Technological Protection Measures, the WCT through Article 11 provided that, “Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.” In simpler words, there are certain tools such as encryption of data which can limit the access and put an obligation upon the users to pay for the access and accept certain terms and conditions for using the material. However, if such a system is broken or circumvented then it shall be the duty of the contracting party to provide legal protection and remedy to the Author of the work. The same replica of this provision is also instituted in Article 18 of the WPPT.
According to the Article 12 of the WCT Rights Management Information (RMI) means “information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public.” The provision provides that it is necessary if a work is transferred over a network, it shall duly acknowledge the original author. And in case such work is broadcasted, distributed, or communicated without the authority or such information then legal remedy lies in the benefit of the Author. A similarly worded provision is secured in Article 19 of WPPT.
These systems have created a bar making access difficult to the copyrighted material. The user has to pay fees and conform to the obligation proposed thereby in order to use the material. Though these systems are very well worded and have proved to be helpful in controlling the use of Copyrighted work upon the Internet but still lack to stop the violation in totality. And as far as India is concerned, no such legal remedies are yet available as India has not ratified to these treaties and there is no such provision in the present Copyright Law of 1957.
Even though India’s legislation is inadequate, the Indian Judiciary has been effective in its approach to recognize the present needs of reforms in Copyright laws. This can be seen in the most recent iconic case of UTV Software Communication Ltd. v. 1337x & Ors.[15] This has known to be “India’s first dynamic injunction issued to block access to rogue websites.” In this case, the Delhi High Court took into consideration the following issues:
- Whether the infringer of the Copyright on the Internet and in the physical world is to be given the same treatment?
The Court opined that there is no logic in treating the two categories as different as their motives are the same and in crime, motive is essential rather the place of crime. Further, it was observed that no such distinction is made by the Copyright Act.
- Whether blocking a website which is dedicated to piracy amounts to opposing the free and open realms of the Internet?
The Court observed that “the question is not whether the internet should be completely free or whether government should have censorship authority.” But it is a matter where an appropriate line for the balance of interests should be drawn and implemented. And the motive of pirated websites is not to provide free content but to gain monetary benefits from excessive advertisements. Thereby, answered in the negative.
- Whether the Court would be justified in their directions of blocking the Rogue Website?
The Court opined that it is totally justified as the injunction order promotes the interest of the public at large but it shall be “fair, proportionate and effective as per the circumstances. It shall not create a barrier for legitimate trade.”
- What shall be the approach of the Court in dealing with these websites, which upon being blocked, may resurface and multiply as mirror websites?
For analysis of this issue, the Court took into consideration the judgment of the Singapore High Court in Disney Enterprises Inc. v. M1 Limited. The court held that this injunction order shall be extended to every mirror website as it would provide the same access with the same motive as the original one. Then only the purpose of the injunction would be truly achieved.
Conclusion: The Way Ahead
“When you have wit of your own, it’s a pleasure to credit other people for theirs.”
Criss Jami Killosophy
It would be wrong not to mention that indeed several efforts have been made on both International & National levels in ensuring a better law to safeguard the interest of a creator. But still, it has to match the pace of the digital dominion. The digital world grows much faster than the law enforcement agencies. It is no solution for an individual nation to make laws on personal levels. There still remains an abundance of doubts & queries regarding the formation and implementation of laws in the digital domain and that can be achieved if every national law in this respect is harmonized with international standards. The time for efficient trending laws is a long way ahead. At present, the time is of “Emerging Problems of Digital Copyright Law.”
References:
[1] Webster’s Dictionary
[2] Eastern Book Company v. D.B. Modak, AIR 2008 SC 809
[3] Holy Faith International v. Dr. Shiv K. Kumar, AIR 2006 AP 198; See also Sulamangalam R. Jayalakshmi v. Meta Musicals, Chennai, AIR 2000 Mad 454; Time Warner Entertainment Company v. RPG Netcom, 2007 (34) PTC 668 (Del) (DB)
[4] S. Mahalingam v. Vasan Publications Pvt. Ltd., 2013 (55) PTC 178 (Mad) (DB)
[5] R. Dhiraj, The Law of Copyright in India, http://www.saprlaw.com/taxblog/copyright_final.pdf
[6] Fareed Ahmad Rafiqui & Iftikhar Hussain Bhat, Copyright Protection in Digital Environment: Emerging Issues, I.J.H.S.S.I. 06, 11 (2013)
[7] Niall McCarthy, Pirated Video Gets Viewed Over 200 Billion Times A Year [Infographic], Forbes (Jun. 26, 2019, 07:02 AM), https://www.forbes.com/sites/niallmccarthy/2019/06/26/pirated-video-gets-viewed-over-200-billion-times-a-year-infographic/#3e3baaff2bcf
[8] Jovana Letic, Piracy Statistics for 2020, Data Prot (Nov. 14, 2019), https://dataprot.net/statistics/piracy-statistics/
[9] Juhi Saraswat & Rekha Chaturvedi, Copyright Protection in the Digital Environment: Indian Perspective and International Obligations, J. INTELLEC PROP RIGHTS 303, 304 (2017)
[10] Id.
[11] Supra 07
[12] Lata Jha, India among top five countries for peer-driven piracy, Live Mint (Aug. 21, 2018, 12:31 PM), https://www.livemint.com/Consumer/MuPSerb5XHOhFQVhoqI8JN/India-among-top-five-countries-for-peerdriven-piracy.html
[13] Id.
[14] Id.
[15] UTV Software Communication Ltd. v. 1337x & Ors., CS COMM 724/2017 (Judgement Dated April 10, 2019)
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