Digital Copyright and the Issues in tackling Unauthorized Digital Copying
April 12, 2021
The advent of cyberspace is broadening the aspect of digital copyright extensively attracting many users at the global level. With this progressive use of the digital world as a creative outlet for producing and displaying copyrighted work, it is necessary to protect these users from any dangers of infringement or piracy. Furthermore, it is necessary that we protect the literary, artistic, musical, etc. works of innovative minds, to gain their confidence in using a universal platform to portray their novel ideas without the fear of any breach. Hence, it is the need of the hour for India to formulate a sufficient legal framework in order to detect and facilitate safe working in cyberspace.
The current state of affairs in the legal framework in India is lacking which does not provide any definitely written policy relating to digital copyright; in addition, the laws which govern digital copyright are the conventional Information Technology Act, 2000 and the Copyright Act, 1957. The drawback to this aspect is that these laws are not in conformity with the nascent technology, also not in compliance with the international conventions and treaties in force. The use of digital copyright brings in many issues such as jurisdiction, different domestic Intellectual Property Rights laws, rights of reproduction and distribution, etc. The purpose of this article is to introduce few suggestions which will help develop the legal scenario concerning digital copyright in India, to make it effective to protect the rights of the users, and encourage the working spirit of innovative minds.
In the new world of technological advancement and modernized ideology, it is imperative to make progress in the field of law as well. This advent of technology has not only made calculations and day-to-day tasks simple to perform but has also piqued the creative aspects of certain exceptional minds. With the help of technology and the internet, there are numerous new inventions to be made, art and music to create and explore, and so on.
The creation of new digital art, music, articles, physical inventions, computer programs, etc. brings to light their Intellectual Property Rights (IPR). Traditionally, Intellectual Property would mean any original idea, context, music, artwork, and similar physical creative outputs. However, with the era of the internet upon us, anything made with originality in cyberspace could also be considered Intellectual Property. There are various methods one can use to protect their original work such as using patents, copyright, trademark, and trade secret.
Copyright is based on the economic philosophy that no person is allowed to profit from the weirs of others. New technology constantly expands the scope and subject matter of copyright. Digital copyright deals with the prospect of artistic, literary, musical, etc. work in cyberspace, and as such, the copyright laws must also be updated to keep up with the technology level offenses in this area. “Indian copyright law is primarily considered to be overshadowed by the English copyright law but the globalization and economic value addition to IPR in general and copyright in particular, India has really changed its dimension and in the passage of time the Indian legislature provided us own color and taste in the field of copyright law.” The main focus of this article is dealing with matters concerning the legality of digital copyright and the issues and challenges faced in this field.
Legal Framework of Digital Copyright in India
In India, as of now, there is not a written legal framework for digital copyright. In 1998, the Government had passed the Digital Millennium Copyright Act, which is essentially an update to the already existing copyright laws to address the realities of increasing Digital Technology.
Historically, our copyright legal system is an extension of British Copyright law. The British parliament enacted the first-ever copyright law in 1911, which laid the basis for the later versions of the Copyright Act. The Copyright Act, 1957 was laid down after Indian independence, there were six amendments in the years 1983, 1984, 1992, 1994, 1999, and 2012.
The most inspired amendment was the latest one in 2012, which was passed as the Copyright Amendment Bill in the year 2010. It was introduced by way of the Copyright (Amendment) Bill in front of the Standing Committee on Human Resources Development after its introduction to Rajya Sabha and received overwhelming appreciation with many progressive changes. This amendment Act is justified by the level playing field in different categories of the right holders in the entertainment industry and the influence of these amendments also collide with the legislative intent in introducing this amendment.
The psychology behind the human mind shows that it is in human nature to crave recognition and having copyright gives them an incentive to keep working on the novelty of their ideas. A literary work means any work done by the author using his spiritual knowledge, labor, judgment, learning skill, realization, etc. The literary work is protected under the copyright law and the author of the literary work has the authority to authorize any person to use the said literary work. Some argue that digital productions have no copyright value but it was contradicted in the judgment given in Sulamangalam R. Jayalakshmi v. Meta Musicals Chennai.
Digital copyright means the protection of copyright associated with digitalized content over the internet. Digital rights are the basic human rights wrapped around the technology in this digital era that ensures the safety of an individual in the universally accessed online platform. These digital rights are further managed by a system known as Digital Rights Management (hereinafter referred to as ‘DRM’), which usually means the management of technologies for the restriction of the use of copyrighted works in digital media. DRM permits the copyright owners to prevent unauthorized copying, editing, sharing, printing, etc. of their work and letting them know who and when accessed their work.
Our Indian legal framework mentions these digital copyrights in Chapter XIII Sections 65A, 65B of the Copyright Act, 2012 read with Chapter XVII Rule 80 of Copyright Rules, 2013. The above provision also exempts the evasion of technical measures for the purpose of such activities as encryption analysis, lawful investigation, computer device or computer network security testing with the permission of the owner, privacy protection, and measures required in the interest of national security. With the non-stop evolution of technology, it becomes necessary to adapt to the occurring changes and protect ourselves from any illegal act. Hence, the DRM system should be revised pertaining to any development to provide protection and fill any gap in the legal framework.
Law is all about the interpretation of the available legislature. While in the Information Technology Act, 2000 the details regarding copyright are a bit hazy. There is not a section that directly addresses copyright infringement and yet certain sections can be interpreted in such a manner. Section 43(A) of the said Act talks about compensation for failure to protect data. In this context, data can be inferred as copyright of the work of an author, and hence any failure to protect such infringement would bring upon the burden of liability. Section 79 on the other hand favors the limited liability of Network Service Providers for violations committed by their clients, so long as there was an absence of knowledge as well as due diligence on part of the service provider.
As the world of digital copyright is ever-growing, it is faced with many issues and challenges as technology is evolving. Some of the issues and challenges faced by the digital copyright laws in India are:
Rights of Reproduction and Distribution
Right of reproduction, a basic right, poses as one of the issues in the world of digital copyright. The distribution of any work requires reproduction since work cannot be distributed without its reproduction. The reproduction process occurs at each and every stage of transmission. Modern technologies have developed the techniques of transmitting copyrighted work. “When data is transmitted through the Internet, using a technique known as ‘packet switching,’ it will be broken up into smaller units or ‘packets’ of information. Then the packets are sent through the network as separate or distinct units at different times, at that time each computer makes a temporary copy of each packet and transmits.”
In India, reproduction requires to be in a material form and includes “storing of it in any medium by electronic means.” Nonetheless, there is no certain proof against all the reproductions in cyberspace that comes within the concept of the right of reproduction as per the law or not.
Right of distribution, again, represents an issue significantly affected by the evolution of the digital environment. The issue seems much complex as the two rights coalesce in cyberspace. Considering the rights of the copyright owners in the nascent digital world, the WCT extended the right of distribution to ‘fixed’ copies and the right of communication to the public as a separate right.
In the case of online copyright infringement, various countries or regions could be involved, therefore the internet is an impalpable space thus determination of jurisdictio1n becomes puzzling. Protecting copyrights in the global market poses serious challenges as infringement in the case of copyrights are frequently connected to more than one state, either because the infringer or the copyright owner stays abroad or the act of infringement is committed in a different place.
The question then comes to light as to which jurisdiction would be appropriate. Each state and its legal system are essentially responsible for determining the court with jurisdiction to decide on matters with an international element, even when these issues are also the subject of international treaties. The concept of territoriality is inseparable from jurisdiction. The principle of territoriality as rooted in the municipal and international law create a complex situation in the case of protection and infringement of copyrights wherein after the establishment of an infringement case, the determination of what jurisdiction is to be implemented adds difficulties.
Public use versus Private use
The Copyright Act of 1957 renders the distinction between the reproduction of a certain work for public and private use. This distinction further permits the usage of reproduced copies of copyrighted work in the public domain with prior permission from the original author or creator. With the advancement in cyberspace, the transmission of work has changed. Utilizing the internet sources, an individual or user can distribute or transmit the copyrighted work to multiple users making it tough for the copyright laws to protect the rights of the owner.
Domestic Intellectual Property Right Laws
It is essential to have harmonious state laws governing different jurisdictions to avoid any delays and render justice against infringement of copyright in India. At present, there is an absence of harmonious laws pertaining to IPR in different states which often leads to delay in the process and an ineffective justice delivery system.
For instance, few states possess the power to urge the Internet Service Providers (ISPs) to run examinations of the materials that are being transmitted through the internet, whereas, some states are not empowered with the same. This is necessary so as to intercept and block sites that infringes the copyrighted content; however, this method of censoring is not easy as it sounds because of the universally accessed cyberspace wherein an individual can upload any information disregard their territorial jurisdiction. Therefore, it is the need of the hour that harmonious domestic IPR laws are implemented to provide uniform guidelines to protect the copyrights from infringement.
Several people are involved in copyright infringements, in such infringements the individuals use tools, services, and venues provided by the other parties, therefore to enforce any form of penalty it is essentially provided to determine where exactly the liability lies moreover an abiding legal query concerns as to what extent those other parties should be held liable for the resulting infringement. Nonetheless, in one issue related to copyright infringement over the internet, several can be involved. Information before being transferred into the public domain goes through various layers and different computers. Several people could be involved in such infringements, and moreover, these people could be based in entirely diverse places.
While enforcing liability, it is significantly important to know on whom the liability rests upon which includes the parties who receive it or the intermediaries such as the ISPs, cloud service providers, search engines, social media platforms, etc. For instance, the question is, in a piracy case, whether the liability would lie on the party receiving the information, the party that dispatches such information, or the operation that has been involved in the process. The ISPs ought to be aware of the incident of infringement in order to fix a problem of the liability on them. It is necessary for a provider to commit an act of infringement directly or indirectly, especially vicarious or contributory infringement of copyright as mentioned by the Hon’ble Court.
Multimedia, Social Media, and Software
The growing digital world provides versatility to many users to evolve and revolutionize their work. The digital copyright enables the users to portray their work on different elements like literary, artistic, musical, etc., wherein the transmit and combine the information concerning the same that raises the issue of authorship. In this digital era, there is the extensive usage of social media platforms wherein many users are able to connect, upload and download copyrighted work and this increases the danger of infringement. Another issue is software piracy where the infringers copy, export, rent, etc. the copyrighted software using this technology itself.
Determine that things can and shall be done and then we shall find the way.
We have seen that the present digital copyright laws are insufficient and lacking to protect the rights of the copyright owners as they are bombarded with many issues and challenges. Internet is progressing and broadening since humans have been adapting the ways to live alongside the technology and developing it accordingly. Therefore, it is important to draw attention to solving these issues and block the activity of the infringers. The recommendations which can fill the void of the deficient digital copyright laws in India enabling cyberspace to be safer for the users are –
International Treaties: The internet is a universally accessed commodity which makes it necessary to follow the international trends focusing on the legal framework of digital copyright issues in cyberspace. Therefore, it is important to have a policy framework in compliance with the present international treaties so as to strengthen the cyber laws and e-commerce in India.
Licensing and watermarks: Usually, the license means a temporary transfer or restricted permission to use the copyrighted work. It is necessary to implement online licensing and digital watermarks so as to have a track of the unauthorized usage of the copyrighted work. These systems would result to be effective to prevent any infringement or piracy of any copyrighted work. This would also help gain the trust of the users in cyberspace.
Jurisdiction and liability: These are huge issues in cyberspace; hence, it is necessary to have guidelines regarding jurisdiction and liability in the cases of cyberspace and to provide clear rules regarding the same.
Implementation of domestic IPR laws: As discussed earlier, it is the need of the hour that there is an effective implementation of IPR laws that are uniform irrespective of different jurisdictions in India so as to achieve a better justice delivery system without any delay.
High-end education system: It is necessary to provide a high-end educational system with modernized technology and ideologies and also, to make the masses aware of the pros and cons of using cyberspace to protect their own data from any infringement.
Management system: An improvised management system should be introduced by India wherein this system keeps a check on any unauthorized work of copying, selling, infringing, etc., and maintains a balance of conflicting interests of users and protecting them like revising DRM, the introduction of ECMS in India.
Strengthen powers of ISPs: When the users are compelled to provide their ISPs which in turn would let the ISPs monitor and stop any illegal activity by using the internet.
The laws that governed us a hundred years ago would not be as effective as one would hope with today’s generation. One of the main problems with copyright protection is that people do not understand the legal framework behind the existing system of copyright. Also, the fact that users are becoming increasingly unwilling to pay for the intellectual property since so much information is available online for free. The task of copyright law has always been to motivate the creation of intellectual works for public welfare yet due to global recognition and marketable value addition it is quite competitive for the industries that earn revenue by exploiting these intellectual properties of creators.
Today, copyright is moving from being an author’s concern to the concept of ‘industrial property’ resulting in a change of role of copyright to the extent of overshadowing the limitations imposed upon the limited monopoly in the public interest.
There is an expression in law, “Ignorantia Juris Non-Excusat,” meaning that ignorance of the law is no excuse. Most people who know the law and not abide by it go ahead in copying copyrighted materials in substantial parts or in totality. As mentioned in this article, there are many issues and challenges relating to digital copyright laws as it is a fairly new subject, but strides must be taken to better the existing copyright legislation in India like proving for some form of liability of service providers for copyright infringement. A strong civil society can help in the process of enforcement of copyright law and diminish the cases of infringement of copyright to enrich the Indian revenues by contributing to the GDP of India, similarly to that of developed countries, by attracting more and more investment in this knowledge-based industry.
Editor’s Note The authors of the article discuss the broad issue of unauthorised digital copying along with the issues and challenges faced by the legal system of our country. The article beautifully captures the essence of Digital Copyright Framework along with sustainable solutions to tackle this endemic of theft.