As Mr. Justice Peterson said in University of London Press Ltd v University Tutorial Press Ltd[1],“…what is worth copying is prima facie worth protecting.”
INTRODUCTION
As we enter into the emerging era of software technology
and the ever-growing sphere of the internet and worldwide web, protection of
data and the importance of copyright protection has taken center-stage. The Invention of digital technology was
the most important revolution in the last century. The influence of digital
technology on information technology is phenomenal and indispensable. This era
has witnessed a new culture of the internet. It is changing our lifestyle and
way of doing business from traditional commerce to e-commerce. The government
of India by passing IT (Information Technology) Act 2000 and further amending
it on 27th October 2009 has given fillip to cyber law. But various issues are
not specifically covered by the Act, such as copyright, payment issues, media
convergence, cyber squatting and jurisdiction. As the technology creates new
opportunities, it also poses new challenges. Copyright is the most complicated
area of cyber law and facing its greatest challenge. Copyright law today protects works such
as literary, dramatic and artistic works; cinematography films; sound recording
and computer programs, databases and compilations.
According to copyright act 1957,
copyright is a negative[2]
monopoly right which enables author of the work to prevent others to exercise
that right which has been conferred on him. What an author creates he is an
exclusive owner of that. The precise text to determine whether a person is
entitled to copyright is to ascertain whether “skill, judgment and experience
or labour, and capital has been expended in creating the work[3].
This work focuses on the
vulnerability of copyrighted works in cyberspace and the Infringement
of copyright in cyberspace. This is considered more severe because here the
“pirates” are invisible and can easily hide their identity. Movies, books,
songs, images and any other sort of copyrighted work can be copied and
reproduced and sold by these pirates online. The need for protection is urgent
and the nations have started realising the importance of copyright works and
the need for their protection. These activities need to be wiped down totally
because the money generated through these activities can be used to fund
terrorist organizations worldwide and then it will become more cumbersome for
the government to control these activities.
As per Section 13 and 63 of Indian Copyright Act, 1957, literary works, pictures, sound recordings and other creative works are protected from being copied without the permission of the copyright holder. It is yet unclear how copyright law governs or will govern these materials as they appear on the Internet. According to the Act, in the case of computer program protection is given on the basis of whether the same is given or hired, or offered for sale or hire, any copy of the computer program, regardless of whether such copy has been sold or given on hire on earlier occasions.[4]
CHALLENGES/ISSUES WITH RESPECT TO THE COPYRIGHT IN CYBERSPACE
Copyright has a direct
relation to the sphere of cyberspace. Cyberspace is a virtual world, which technically exists
only in computer memory, but it is interactive and pulsing with life. In cyberspace,
one can meet and talk to new people, read, publish, research, hear music, see
video, look at art, purchase and sell things, access government documents, send
email, download software, and receive
technical support.
The dynamic changes in the field
of Cyberspace are increasing with every bit of information used on the
internet by the whole
world. Our laws have yet to catch up with it. But as it becomes more integrated
into (and integral to) our daily lives, many are becoming concerned with
defining acceptable behavior in this new landscape. The Internet poses a large
number of problems in the area of copyright protection These challenges and the
problems posed before us have to be tackled with due care and diligence.
The major need for
appropriate copyright laws in India in the field of cyberspace
is because of the limitation of the Information Technology Act, 20002,
which fails to cover various issues such as copyright, domain name, cyberspace and jurisdiction.
●
Ease of replication- If one chooses to save
this paper, he can have a perfect copy of it as that of original. Moreover, he
could make as many copies of it as he wants. The beauty of digital media is
that there is no degradation in successive copying. For some, this is also its
curse.
●
Determination of Public
and Private Use - One of the basic copyright issues in cyberspace is determining
the border between private use and public use. Like all copyright laws of the
world, the Indian Copyright Act also makes a distinction between reproduction
for public use and private use.
Reproduction for public use can be done only
with the right holder’s permission, whereas the law allows a fair dealing for
the purpose of private use, research, criticism or review. This distinction is
eroded with the ability of an individual to transmit over the Internet any
copyrightable work and it calls for a new set of norms in copyright.
● Problem of Distribution and Reproduction Rights- The right of reproduction presents certain fundamental problems over the internet. This is because of the basic nature of internet transmission. Reproduction takes place at every stage of transmission. Temporary copying (known as caching) is an essential part of the transmission process through internet without which messages cannot travel through the networks and reach their destinations. In the Indian Law, reproduction has to be in a material form but includes “storing of it in any medium by electronic means.” Case laws need to make it amply clear about the temporary and permanent reproduction, that takes place in the internet communications.
●
Software Piracy- Before understanding
software piracy, it is imperative to understand the three major types of
software, that is,
1. Micro code: A programme
which controls the details of execution;
2. The operating system
software which control the sources of a computer and manages routine tasks and
is a necessary requirement for a computer to function;
3. An application software
which is designed to perform a particular task.
Hence, piracy of this
software occurs when the software so available on the internet is available to
be downloaded or temporarily stored by an internet user without the permission
of the owner of the software.
The Indian Copyright Act
is unable to protect the unauthorized distribution and use of work over the internet. Infringement over the internet and piracy pose a threat
to creative works worldwide and thus the growth of the internet, the e-commerce
and the digital economy. Copyright owner's
exclusive right of distribution applies to email
attached or forwarded.
In Play Boy Enter Inc v/s Frena[5],
Defendant’s subscribers downloaded unauthorized photographs of playboy
enterprises to a bulletin board system. The US Court held that the
plaintiffs exclusive right of distribution was infringed by customers of
the defendant. This creates an obligation on the
bulletin board operators to ensure that its system is not being used to display
and download copyrighted materials by its customers.
In Kelly v Arriba SoftCorp[6],
Leslie Kelly’s copyrighted pictures were displayed by a search engine that not only produced
thumbnails but also displayed large size pictures in its search results. This was held by the court to
be an unauthorized reproduction of plaintiff’s images that
directly infringed
copyright of the plaintiff. While creating only thumbnails could be justified
as fair use, but downloading from search engine the resultant full size image
amounted to an infringement.
In Microsoft Corporation v Yogesh Popat[7], the Delhi High Court dealt with a copyright infringement case and awarded compensation to the tune of Rs 23.62 lacs to Microsoft Corporation against M/s Crompton Computers Private ltd and its directors for uploading pirated software of Microsoft in computers that the company sold after assembling parts.
In Syed Asifuddin and Ors v. The State of Andhra Pradesh & Anr. [8], the Tata Indicom employees were accused and arrested for charges of hacking a computer source code under Section 65 of the IT Act,2000 for altering the electronic 32 bit number encryption (ESN) programmed into cell phones that were to be exclusively used only on Reliance telecommunication service network. The court observed that such tampering of code is a punishable offence under Section 65 of IT Act. The court observed that in view of Section 2(o), (ffc), section 13 and 14 computer programme is a literary work protected by copyright and according to Section 63 any infringement of computer programme is punishable. However, the court observed that this issue will be decided by the trial court after evidence is led before trial court. The author is however of the view that such tampering will not be considered fair use under Section 52 of The Copyright Act 1957 as it was not reverse engineered for any of the exceptions mentioned in Section 65A of the Copyright Amendment Act, 2012.
LEGAL ASPECT FOR COPYRIGHT INFRINGEMENT
Copyright Infringement
Copyright in a work is
infringed when the work is copied without the consent of the copyright owner. A
copyright law deals with the form in which the work is expressed. It doesn’t
monopolise the idea of information. As a medium, it allows a person to access a
large amount of information and to copy that information in the same state as
it is displayed.
Electronic Copyright Management System (E.C.M.S)
The copyright owners
have an option to make use of the technology protection measures. E.C.M.S is
indeed a legal framework to protect against third parties circumventing these
systems.
Technology protection
measures may be classified as follows: - access control measures and copy
control measures. Examples of access control measures include passwords,
encryption and set top boxes. E.C.M.S is used to enable the copyright owners to
track, manage or prevent copying of their work, such as digital watermarking
system. This system allows the copyright owner to track and identify
unauthorized copies made by the original work.
Legal Aspects of Electronic Copyright Management System
The following are the
two important legal aspects
(A) D.M.C.A (Digital Millennium Copyright Act 1998)
This Act (D.M.C.A)
provides firstly, that no person shall circumvent a technological protection
measure that effectively controls access to a work protected under the Act. The
Second part prohibits trafficking in devices or services for circumventing
technology measures that control access. The third part prohibits trafficking
in devices or services for circumventing technology measures that protect the
rights of a copyright owner.
(B) E.U.C.D (Europe Union Copyright Directive)
The main focus was on preparatory activities, because the real danger for Intellectual
Property Rights will not be a single act of circumvention by individuals but
preparatory activities to produce devices or offer services to circumvent.
Stronger Legislations- Currently there are no strict laws that can make
the person liable to face harsh punishments or to deter others from committing
such offences in future. The existing laws are not in accordance with the
developments that have taken place in cyberspace.
Protection Of Database In India
The Indian Copyright Act
1957 protects “Databases” as “Literary Works” under Section 13(1) (a) of the
Act which says that copyright shall subsist throughout India in original
literary, dramatic, musical and artistic works. The term computer Database has
been defined in the Information Technology Act 2000 for the first time. Section
43 of the I.T. Act 2000 provides for compensation to the aggrieved party up to
one crore rupees from a person who violates the copyright and cyberspace norms.
Also Section 66 of I.T.Act 2000 provides for penal liabilities in such a case.
Copyright Protection Of Computer Software / Program
Under the T.R.I.P.S
Agreement, computer programs now qualify for copyright protection just as any
other literary work, as well as other forms of I.P. protection. Copyright,
matters most in the computer software industry to off- the shelf business
applications sector.
For the first time in
India, the copyright law clearly made several provisions in this regard to
protect the copyright owners: -
●
The right of a copyright holder
●
Position on rentals of software
●
The rights of the user to make backup copies
●
Section 14 of
the Copyright Act makes it illegal the distribution
of copies of copyrighted software without paper or specific authorization.
●
The violator can be tried under both the Civil and Criminal Law
●
Heavy punishment and fines for infringement of software copyright.
●
Section 63(B)-Stipulates a minimum full term of 7 days, which can
be extended up to 3 years
Indian Cyber Jurisdiction
Though it is in the
nascent stage as of now, Jurisprudential development would become essential in
the near future; as the internet and e-commerce shall shrink borders and merge
geographical and territorial restrictions on jurisdiction. There are two
dimensions to deal with.
(i) Manner in which
foreign courts assume jurisdiction over the internet and relative issues
(ii) The consequences of decree passed by a foreign court.
ANALYSIS
The elaborate discussion
in the foregoing parts needs to culminate with the following outcome: -
1. T.R.I.P.S Agreement,
wherein computer programs qualify for copyright protection, needs to be adopted
and implemented in letter and spirit by all the developed countries
2. Copyright matters most in the computer software industry to off the shelf
business applications sector in developing countries which presents two main
problems that have to be closely monitored so that the copyright owners across
the World will be protected.
(a) Stronger protection
and enforcement could mean a more limited diffusion of technologies. Eg:
governments and donor organisations should review their software procurement
policies.
(b) National copyright
laws need to be drafted appropriately.
3. Serious and sincere
efforts are made for procurement of computer software. Since software license
fees affect the total cost of an I.T system.
It would be sensible if the governments and donor organisations should certainly consider supporting programmes to raise awareness about low cost options, including open source software, in developing countries.
CONCLUSION
From the foregoing discussions it
can be concluded that the advent of the Internet is a serious concern in the
field of copyrights. The infringement of IP rights in cyberspace is common nowadays. The
one can notice how the increasing scope and sphere of the internet and cyberspace is creating a ground for the exploitation and infringement
of rights of the owners of digital content and software data. The
present Indian Legislation on cyber Law does not have sufficient provision to
tackle problems relating to IPR and cyberspace. So there is a need for specific
provisions which regulate IP rights in Cyberspace.
The Internet has helped people in many ways. It is the best and fastest way to share your works with anyone worldwide. People have been using the internet widely to gain publicity in a very short span of time. But it is the duty of the law authorities to see that no one’s work gets infringed by others. Because according to the Lockean Labour Theory everyone should be reasonably acknowledged and reimbursed for their work and it is the responsibility of the state to protect these works.
The Electronic Copyright Management System (ECMS) has helped to some extent in protecting these works on the internet. But still stronger legislation is needed to stop these infringements. Only stronger laws can ensure that people don’t illegally reproduce or use other’s work. Stronger punishments and heavy penalties have to be imposed so that no one commits such acts in future.
The analysis of copyright in cyberspace reveals a mixed result of new opportunities and threats. Such threats often outweigh the opportunities offered by cyberspace and necessity arises for increasing regulations of cyberspace to protect copyrights. The copyright law is the most potent instrument presently available for tackling I.P.R issues on the internet. There is an immense need for the society to be educated about the necessity of copyright protection in all fronts to prevent any unauthorized use and pilferage of the system. People’s basic concept of what is fair and equitable might best determine the future of copyright in cyberspace.
[1] [1916] 2 Ch 601
[2] Deepak Printings v/s Forward Stationery mart (1981) PTC 186 at
P 189
[3] Mac Milan v/s Cooper (1923) 93 LJPC 113 and 117
[4] Section 14 (c), Copyright Act, 1957.
[5] 6 839 F. Supp. 1552 (M D Fla 1993)
[6] 280 F 3d 934(9th Cir 2002
[7] 2005 (118)DLT 580, followed in Adobe Systems inc v K.Khanna 2009
(5) AS ( Delhi) 954
[8] 2005 CRLJ 4314.
About the Author: This Case Brief is prepared by Ms. Anubha Mathur, law student at Amity University, Noida and was an intern at MyLawman. She can be reached at anubha602@gmail.com.
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