Copyright Implications of the Convergence of Telecommunication, Broadcasting and Info
Copyright Implications of the Convergence of Telecommunication, Broadcasting and Information Technology- Lesson for India
INTRODUCTION
[1] Legal Issues
1.1 P2P Networking
1.1.1 Napster
1.1.2 Post Napster P2P Networks
1.1.3 Extent of Damage by P2P Networks
1.2 Reaction of the Copyright Industries
1.3 Networks like Napster, Gnutella and Kazaa and Indian Law
1.4. Liability for linking under Indian Law
1.5 Inlining and Indian Law
1.6 Legality of framing under Indian Law
1.5 Management of Copyright in Digital Environment
[2] Legal Provisions for Technological Measures
4.1 World Copyright Treaty, 1966
4.2 Digital Millennium Copyright Act, 1998
4.3 The EU proposed Directive on Copyright
4.4 Indian Position
Conclusion
Copyright Implications of the Convergence of Telecommunication, Broadcasting and Information Technology-Lasson for India
Dr. Tabrez Ahmad*
The paper identifies copyright implications of convergence in India, examining especially how Indian law is approaching convergence of telecommunication, broadcasting and information technology issues. The delicate balance of rights and obligations of intermediaries of Internet such as copyright owners, domain name holders, consumers, netizens and internet service providers can be upset when trying to keep the legal developments abreast with the technological advances. As more and more digital products in network environment are emerging efficient management and controlled distribution of such products have become one of the important considerations, in an unprecedented way. The copyright owners are under a constant threat of loosing control over their products on the information superhighway and are experimenting various technological adjuncts to retain control. Differences in rules are beginning to be questioned. Now legal regulation is a great challenge before the world because the way legal and regulatory reforms are carried out will eventually determine the manner in which convergence affects our lives. The converging technologies raise several core issues such as telecom sector is concerned with infrastructure regulation and access issues; broadcasting industry is more worried with access and content issues; information technology is trying to deal with contribute with new regulatory issues of framing, hyper‑linking, deep-linking, inlining, fixation, communication, publication, parallel imports, rights management information, allocation of frequency spectrum, fair dealing, implied license, liability of Internet Service Providers (ISP), and jurisdiction etc.
This paper in particular questions the regulatory framework for the telecommunications, broadcasting and information technology sectors in a convergence environment, and taking in to account relevance and need to safeguard the public interest.
Keywords: Deep linking, inlining, framing, rights management information, Internet service provider, fair dealing, netizens, and Internet jurisdiction.
*Asstt. Professor of Law,KIIT National Law School, KIIT University, Bhubaneswar, India-751024
e-mail tabrez@kiit.ac.in , tabrezahmad7@gmail.com
INTRODUCTION
Convergence of telecommunication, broadcasting and information technology is a growing threat to the security of copyrighted materials. Copyright in the last century has illustrated how the law has somehow managed to deal with onslaught of technology.[1] The latest challenge has been posed by the advent of the digital technologies. In whose response, the two 'fast tracked' WIPO (World Intellectual Property Organisation) Digital Treaties were adopted in 1996.[2]
Developments in broadband communications, digitalisation, convergence and globalisation raise serious implications for all regulatory regimes – especially that of the Copyright. Following an analysis of each of the above mentioned four factors, we will examine the nature of digital material and the rights over such material conferred by the copyright regime. Finally possible technological, commercial and legislative solutions to the challenges of the digital domain will also be discussed.
Digitalisation refers to the ability of a person or system to convert a piece of information; a representation of reality is recording of some matter into digital form. In a digital world, all creation be it a novel, a poem, a shopping list, a painting, a photograph, a movie or a recording - are reducible to strings of noughts and ones"[3] .It is possible to digitalise anything not ostensibly physical[4] .All material, content and information that can be represented in some virtual manner is capable of being recorded in digital code. In a discussion of virtual reality Mille[5] noted:" The digitalisation of representations of any nature has made all kinds of shapes, colours, lights, odours, temperatures and almost any expression of reality susceptible of being recorded, stored, processed, reproduced, and transmitted by computer means". The digitalisation of all tangible subject matter has produced a kind of "technological Latin"[6]. This is due to common formats emerging for the storage, manipulation and transfer of digital material[7]. Boundaries of language, geography and proprietary technologies are becoming increasingly irrelevant in the digital domain. There are serious issues for the application of copyright in this context. The digitisation of copyrighted materials enables it to be used in many different form, to be copied at the same quality as an original, to be manipulated and distorted, and to be distributed throughout the world cheaply, easily and speedily.
Jurisdictional issues also complicate the use or protection of copyright material. Although regulated by a number of international treaties, copyright law is basically national. Each legislated regime is different and there are many countries that have not ratified the primary treaties.[8]
When the Indian Copyright Act 1957 was first drafted, there were clear distinctions between the various technologies addressed. Television, radio, published literature, artistic works, phonograms and other items were relatively autonomous[9]. However, as Yastreboff explains, "Information services which were once delivered by 'distinct and separate technologies (such as paper, cassette tape, video and CD may now be delivered by the same or interchangeable technology'. That is, 'digital technology which provides a common universal language for all services', including text, voice, image and graphics."[10] This phenomenon is known as convergence.
Network convergence refers to the merging of infrastructure and communications systems. As a result, previously distinct services such as radio and television broadcasting, telecommunications, publishing and cable services have begun to merge. Organisations, in adapting to these new realities, have also displayed an element of convergence in that one entity may now be involved in both content creation and distribution, or in the creation of different types of content[11]. Personal computers are able to carry out tasks that were previously the domain of separate autonomous appliances and systems. Such a development was discussed in Audio-Visual Copyright Society Ltd v New South Wales Department of School Education:[12] "with the prospect of moving from analogue to digital recording, there would be a convergence of television, VCR, computer and digital recording technologies into a single living room Internet communication, information and entertainment unit. It would be connected to the web by optical fiber and/or satellite and receiving and recording information, video, film and music on-line from a provider to be accessed instantly or at some later time. This universal communication device is known as a Central Information Appliance.
Flowing from the above, there have been calls for legal and regulatory convergence. In the light of the overlapping technological functions being provided by various digital systems, commentators argue that a common regulatory structure is necessary. The examples of this development are Digital Agenda Act[13] and the Electronic Transactions Act, 1999, Australia, Federal Communication Act 1996 and Digital Millenium Copyright Act 1998 of USA, and CCB 2001 (Communication Convergence Bill) in India.
The significance of convergence should not be understated. The World Intellectual Property Organization (WIPO) Copyright Treaty of 1996 (the WCT) recognized the profound impact of the development and convergence of information and communication technologies on the creation and use of literary, musical and artistic works.
The fiber optics and satellite transmission is known as broadband communications[14]. Complementing the increased speeds of communications links have been improvements in the quality and reliability of these systems. Sophisticated software controls have enabled the creation of error correction and monitoring systems that significantly enhance the quality of the end product.
Broadband systems allow massive amounts of data to be transmitted almost instantaneously. This facilitates usage of communications links not previously considered commercial[15]. For example, a few years ago it was not unusual for an hour to be required to download a song over the Internet. Now businesses are developing around the concept of online distribution of music. When combined with convergence and digitalisation, the emergence of broadband communications technology poses a number of challenges for copyright management. It means that vast amounts of data, representing nearly all information, content or material, can be transmitted from one person to another quickly, easily, cheaply and reliably.
[1] Legal Issues
One striking example of convergence has been the emergence of multimedia[16]. Multimedia encompasses "the convergence of video, audio and telephony technologies. It is a single work combining a rich variety of underlying works such as text, sound and visual images, both still and moving". According to the Berne convention (art. 2), the definition of the protected subject matter encompasses every production in the literary, scientific and artistic domain, regardless of its form of expression; musical composition with or without words; dramatic works; cinematographic works; drawings, paintings, architectural drawings, sculptures and photographic works, amongst others. Pursuant to art. 10 of the 1994 TRIPS computer software shall be regarded a literary work.[17]
A cinematograph film is defined as: "the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing; of being shown as a moving picture; of being embodied in another article or thing by the use of which it can be so shown and includes the aggregate of the sounds embodied in a sound-track associated with such visual images". A number of cases have examined the scope of the film category, especially in relation to digital content. As noted earlier, Galaxy Electronics Pty Ltd. v Sega Enterprises Ltd[18]., discussed whether a computer game could be categorised as a film. The court approached the issue from a "technology-neutral" perspective and held that the effect observed by the viewer was the important issue, not the means utilised [19]. Therefore, the fact that the images and sounds were stored in digital files on a computer instead of conventional magnetic film was not material[20]. Computer games challenge the traditional concept of a motion picture film. Each time the game is played; the sequence of sounds and images presented to the user varies, depending upon the user's interaction with the computer program. The court held that this "non-linear" content could still be categorised as a film[21]. That no "two sequences of images will be identical, since the actual images seen in any particular game reflect player input, did not mean that the sequence was incapable of coming within the definition of 'cinematographic film'"[22].
The South African Supreme Court came to a similar conclusion in Golden China Game Centre v Nintendo[23]. Many examples of multimedia are likely to be protected under the cinematograph film category. It is uncertain, however, how broadly courts will interpret the concept of a film. Although a number of courts have protected relatively non-linear computer games as films, the games in question have had a limited number of possible scenarios. In each the game's authors created all the scenarios, at least to an extent.[24] Whether a reference work such as an online encyclopedia would be similarly protected is uncertain. It would be harder to characterise as a cinematograph film. However, a court may be willing to characterise this as a collection of numerous literary works, sound recordings and cinematograph films.
Auditory material may receive copyright protection under two main headings. First, a musical item may be characterised as a musical work which involves a "combination of melody and harmony".[25] This may be broader than music's general meaning, which is the "art of combining sounds of voice(s) or instrument(s) to achieve beauty of form and expression of emotion".[26] Second, a sound recording, being "the aggregate of the sounds embodied in a record" is an item capable of protection. A "'record' means a disk, tape, paper or other device in which sounds are embodied." There appears to be little doubt that a selection of sounds embodied in digital form will receive copyright protection as a sound recording.
Separate from the underlying materials involved, copyright exists in the manner that content is communicated to the public. For example, copyright exists in the sounds and or images transmitted to the public in a broadcast. The published edition of a literary, dramatic, musical or artistic work receives copyright protection, albeit a different collection of rights to the original work itself.
The copyright provides a bundle of rights to owners.[27] Difficulties arise when identifying adaptations and derivative works as a result of the ease with which digital material may be manipulated. Further, certain processes inherent in the use of digital technology may involve adaptations and derivations - such as the translation of instructions between different levels of software code[28] or from one operating system to another. Although this is not new it is a more severe manifestation of the issue that exists in the physical realm. Reproduction and copying (the duplication rights) are not generally defined. Duplication "under the copyright law occurs simply by transferring copyrightable content from one digital storage device to another." To reproduce is generally to "produce a copy or representation of" an item, to be seen, heard etc again" or to cause a second object to be "made in imitation of" the first.[29] Duplication may involve more than one medium, form of storage or presentation. For example, in Roland Co v Lorenzo and Sons[30] a reproduction was held to have occurred where text stored in a digital file was printed out on to paper. Where the material in question is a musical, literary, dramatic or artistic work, the reproduction must be in material form to infringe the copyright owner's rights.
The duplication of a digital text file or audio track would constitute a reproduction or copy in material form. Further, the scanning of an image to create a digital file would probably constitute a reproduction or copy in material form. This corresponds to the technology-neutral approach taken in cases such as Roland Co. v Lorenzo and Sons and Galaxy Electronics Pty Ltd v Sega Enterprises Ltd.[31] From Roland Co. v Lorenzo and Sons[32] it appears that a work saved in digital code on a computer disk is in material form. The binary code was held to constitute "a form of storage from which" the content could "be reproduced". If in Roland the printing on paper of a digital word processing file was considered a reproduction of the literary work contained in the file, then it is logical to assume that the scanning of a printed page of text to create a digital file would also constitute a reproduction. This same reasoning should apply to the digitalisation of visual and auditory material, as well as sound recordings.
Although most works have an identifiable author, in some situations the identification of an author can be a problem. In the digital domain, this poses two main issues. There may be material for which no direct human effort can be identified. An example would be weather information generated by a satellite and transmitted to the earth. The author, for copyright purposes, of such material would probably be the person who primarily made the arrangements to facilitate the collection and transmission of the information. digital technology appear to be responsible for the results. In Express Newspapers Plc v Liverpool Daily Post and Echo Plc[33] the author of the computer software at issue was held to be the creator of the results from the computer program's use. In this case the software was designed to generate various patterns and sequences. In situations where the technology, such as word processing software, is akin to a tool being utilised to achieve a user's purposes, the results of this effort are likely to be owned by the user. In Roland Co v Lorenzo and Sons[34] Pincus J explained that, in the light of Express Newspapers "obviously the author of the letters and symbols typed onto a word processor is the author of the printout". By contrast, the user of a multimedia work, although influencing which images and sounds are perceived, would probably not hold copyright in any results. It is acknowledged that there will be intermediate cases where the characterization is much more difficult. Indeed, it is possible that some situations will appear to be cases of joint authorship.
A few cases have examined the status of temporary copies such as those created in a computer's Random Access Memory (RAM) during its use. In MAI Systems Corporation v Peak Computer Inc[35] the plaintiff claimed that Peak had infringed MAI's copyright by copying software owned by MAI into the RAM of a third party's computer. The ninth circuit appeals court held that MAI had "adequately shown that the representation created in the RAM is 'sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated' for a period of more than transitory duration".[36] The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted there under, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention."[37]
The user can ‘interact’ with the work in ways previously unknown. He can make alterations and additions and even create a new work out of the stock of existing ones. If the rights for all classes of works were the same, then perhaps, this would not have been a major issue. But the law as it stands in India, distinguishes between different classes of works in the matter of rights. For example, the rights in a literary work and those in a cinematographic film are different. There is no rental right in a literary work, whereas there is such a right in cinematographic film.[38] The authorship may raise another problem, as the criterion of authorship is different between literary, dramatic, musical and artistic works on the one hand and cinematographic films and sound recordings on the other hand.[39]
What kind of protection does a multimedia work attract in its individual combination of component parts? The question is how to qualify digital off-line and on-line media from a copyright perspective. The significance of the issue lies in the fact that the relevant categorization entails different legal consequences and the presence of multimedia work defies existing classification under the copyright law.
It is not a new type of work to the extent that a multimedia product can fall under one or several, already existing, categories. Protection of the individual elements of a multimedia work must not be confused with protection of the multimedia production as a whole. In accordance with the existing provisions of the Copyright Act it remains possible to dispose of the individual contributions separately, even after the individual elements have been combined in one single work.
It is possible to consider and treat multimedia products as works similar to cinematographic film in the sense of Section 2(f)[40] . It seems possible to classify and to treat multimedia productions as collections of literary or artistic works in the sense of Article 2(5)[41] of the Berne Convention and they might also fall under the category of compilations of data or other material in the sense of Article 10(2)[42]. There is also a view that multimedia work be classified as computer programme since every multimedia work will have a software component. As there are separate provisions for rights and authorship of a computer programme distinct from literary works in the Copyright Act, this could be a possible solution. However, issues may arise on the retention of separate copyrights in the works incorporated in the multimedia, in terms of section 13 of the Act[43] and the rights of performers[44] in the product. At present, large numbers of multi-media works are being created by combining pre-existing works. The classification of multi-media works is an issue, which needs to be looked into in depth.
As more and more digital products in network environment are emerging, efficient management and controlled distribution of such products has become one of the important considerations, as never before.
The primary requirement for the automated grant of rights in a digital context is that the protected work and subject matter can be identified as such belonging to the relevant authors and rights holders and the licensing terms must also be available electronically. On the one hand, this information must be easily readable of a potential user; on the other hand it should not be easily erasable so that it remains embodied during the subsequent stages of exploitation in connection with the work. In addition, right holders must be able to prove their authorship and ownership of rights in case of infringement; the relevant information should not be discernible to third parties and should remain embodied within the work even after the latter has been adapted, or where parts of the work are used.[45]
This is possible only if certain data which identifies the work, the author of the work, the owner of the work, or information about the terms and conditions of use of the work which are necessary for licensing and payment of licence fee, are embedded in the work. This data is classified as “rights management information” in the WCT and WPPT. The WCT defines rights management information as:[46]
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 represents 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.
Contracting parties to the Internet treaties have to provide legal remedies against any kind of removal or alteration of any of the above information as well as distribution or communication to the public of copies of work with such removals or alterations.[47]
Section 52A of the Copyright Act, 1957 provides for certain information to be displayed on cinematographic film and sound recording. The information could be described as a part of ‘rights management information’. But this provision is not adequate for the administration of the rights in the digital environment and further it is limited to two classes of works only. Also in this case, the onus is on the copyright owner. A considerable amount of work is being done on “copyright tagging” and developing “unique identifiers” so that the owners of digital material will be able to identify their property wherever it is and however it has been modified or distorted. This will overcome many of the problems of identification.
‘Rights management information’, as a technological adjunct providing legal support to network-based rights management systems will enhance the ability of rights holders to exploit their property on the Internet, and allow consumers to rely on the accuracy of the information they receive so they can feel secure transacting online.[48]
The exclusive rights granted by copyright are the basis for collective management and the challenges to these rights do affect the collective management as in the case of the right to reproduction and the issue of temporary copies: the collecting societies can only collect royalties in the digital environment if they fall within the scope of 'reproductions.' There is need to obtain a balance between the authors' interests and the producer. This is where the collecting society comes in. The producer cannot go to each individual right holder to get their individual authority and it is thus more practicable to go through the respective collective administration societies to obtain the authorisation.
The individual management of rights has been proposed as an alternative to the collective management of rights. The proponents of this theory believe that with the new technologies, a right holder would be able to monitor and license the use of his works by the multimedia producers. But the individual management would be costly and difficult for the users as well as the right holder.
The use of works in cyberspace is governed by copyright legislation but the main question is which country's legislation is applicable as the Internet has no physical boundaries as such. The copyright works can be downloaded from practically any corner of the earth where the necessary facilities are available. In the case of the infringement of these rights, which laws would be used to determine the case? Would the law be that of the country where the works are uploaded (country of origin) or would it be that of the country where the works are downloaded? (recipient country).[49]
It is trite law that the extent of the protection as well as the means of redress afforded to the author to protect his rights shall be governed exclusively by the laws of the country where the protection is claimed.[50] Ordinarily, copyright is claimed where the work is exploited and thus the place where the infringement has occurred. [51]
In the digital world, one has to consider the following; firstly, the place where the given transmission is deemed to have taken place and secondly, what country's legislation to apply. There are several schools of thought on this matter and one proposes the general analogy of the Internet transmissions to the Satellite broadcasting approach.[52] This would mean that the law of the country of origin should apply.[53] Others are of the opinion that the laws of the recipient country should apply. This could be problematic as the works are downloaded in several countries, so which of these laws would apply? [54]
The jurisdictional issues raised by the Internet cases are still subject to the Private International law rules and in most cases will rely upon the law of the countries where the infringement took place.
1.1. P2P Networking
Peer-to-peer (hereinafter referred as P2P) is defined as two or more computers connected by software which enables the connected computers to transit files or data to other connected computers. In recent usage, P2P has come to describe applications in which users can use the Internet to exchange files with each other directly or through a mediating server. It is helpful to think of the P2P network as a conversation between computers – some computers are “talking” while others are “listening”. The P2P connection means that it’s a direct link. The file is being directly transferred from one computer to the other; it is not going through any mediating server. Napster and Gnutella are examples of this kind of P2P software.
1.1.1) Napster: Napster was created by 19-year-old Shawn Fanning in 1999 and it quickly became popular around the world and pioneered the concept of P2P file sharing. With Napster, individual people stored files that they wanted to share (typically mp3 music files) on their hard disks and shared them directly with other people.
In order to enjoy a free music file first of all one had to become a member of Napster service by downloading the Napster software on one’s computer. The Napster software was available for free at the Napster’s Web site[55]. After implementing the Napster software the computer became a small server[56] able to make files available to other Napster users. Then the computer connected to Napster’s central servers. The Napster software that a member downloaded on his computer automatically told Napster central servers that these were the music files on his computer. So, the Napster central servers had a complete list of every shared song available on every hard disk connected to Napster at that time. A Napster user could send a request to the Napster server for a particular piece(s) of music. Now the Napster server did not contain any music on its own server but had a list of all the music that was available on the Napster members’ computers. The list was dynamic in nature as the music files available depended on which member was online at a particular time. The entire user community could be searched for artists or titles in seconds. One could simply type in the name of an artist or song, receive a list of what was available, and then downloaded the music from another user’s hard drive.
Napster grew to having 57 million users of its service with a consistent 1.6 million using the system at any given time.[57] Napster became so popular so quickly because it offered a unique product – free music that anybody obtain nearly effortlessly from a gigantic database. You no longer had to go to the music store to get music. You no longer had to pay for it. You no longer had to sorry about cuing up a CD and finding a cassette to record it onto. And nearly every song in the universe was available. At its peak, Napster was perhaps the most popular Web site ever created.
But for the music industry Napster was a big, automated way to illegally copy copyrighted material. The music industry was against Napster because people could get music for free instead of paying for a CD and any music downloaded was considered a loss of business opportunity. The industry sued Napster under a claim of copyright infringement. Napster’s defence was that it contained no copyrighted music filed on its servers. It just had a list of what was available on Napster’s users’ computers. So, if at all any one is liable for copyright infringement it is the person who downloads the copyrighted product or the person who makes it available and not Napster itself. But the court had sufficient reasons to injunct Napster for copyright infringement. The court said that putting the list on the Web site was akin to running a huge distribution network. Napster’s key weakness lay in its architecture – the way that the creators designed the system. The central database of song titles was Napster’s Achilles’ heel. The court[58] ordered Napster to stop listing the music files which were under copyright protection and there was no means with Napster to segregate copyrighted music files from those that were in public domain. The only option with Napster was to shut down the database and the absence of a central database killed the entire Napster network.
1.1.2) Post Napster P2P Networks: With Napster gone, what the world had at that point was something like 100 million people around the globe hungry to share more and more files. It was only a matter of time before another system came along to fill the gap. One distinguishing feature of the P2P services that came after Napster was that they had no central server maintaining direct file listings of all the files. The other distinction was that Napster was related to music files and that too specifically mp3 files. But most of these new softwares, Gnutella, Kazaa, etc., allow any type of files to be transmitted and downloaded.
Gnutella is an underground variant of Napster whose popularity has risen dramatically in the wake of the litigation in which Napster had been embroiled. Gnutella has dozens of clients available. Some of the popular Gnutella clients include: BearShare, Gnucleus, LimeWire, Morpheus, and XoloX. Given that there is no central server to store the names and locations of all the available files first, one has to install a version of Gnutella on one’s computer and type in the name of the song/film or any other file one wants to find. The machine knows of at least one other Gnutella machine somewhere on the network because it has been told the location of the machine by typing in the IP address, or because the software has an IP address for a Gnutella host pre-programmed in. The machine sends the file name typed in to the Gnutella machine(s) it knows about. These machines search to see if the requested file is on the local hard disk. If so, they send back the file name (and machine IP address) to the requester. At the same time, all of these machines send out the same request to the machines they are connected to, and the process repeats. After getting all of the search results the machine directly contacts the computer that has the desired file. It is an extremely simple and clever way of distributing a query to thousands of machines very quickly.
Kazaa is the latest version in the P2P technology which is spreading like a wildfire. Kazza was originally established in the Netherlands. Kazaa network is built on a technology called the Fast-track technology. This is different from Gnutella in the manner that this software actually converts certain good quality computers in a particular network into supernodes[59] which perform the listing function. The P2P searches occur through users with these supernodes. A supernode contains a list of some of the files available and where they are located. The Kazaa software first searches the nearest supernode to a user and then refers his search to other supernodes and so on. This process is designed to make searching as fast as possible and means that searching will take place only through the files that have been indexed by the supernodes.
In Buma and Stemra v. Kazaa[60], an action for copyright infringement was brought against Kazaa by Buma and Stemra in a Dutch Court. The Plaintiffs, Buma and Stemra, a Dutch Copyright licensing group, sued Kazaa for the distribution of software which allowed users to make unauthorized copies of copyrighted works. In November of 2001, the district court of Amsterdam ruled in favour of the copyright industry and ordered Kazaa to remove its website. Kazaa, thereupon, filed an appeal vide matter Kazaa v. Buma and Stemra[61] in the Amsterdam court of appeal. The court of appeal decided in Kazaa’s favour and reversed the findings of the district court starting that the Kazaa technology has many other substantial and legitimate uses such as trading jokes and personal photographs apart from the fact that it could be used for copyright violations. Further, after release Kazaa.com is not monitoring the way it is being used and is not in a position to control it.
In Metro Goldwyn Mayer Studios v. Grokster et al.[62], a roster of entertainment conglomerates accused Fast Track-enabled services kazaa, Morpheus, and Grokster of profiting from a “21st – century piratical bazaar.” Record labels and movie studios wanted the services closed and fined $150,000 for each illegally traded song or movie. It was finally held that the absence of any central control over how users used the P2P systems in question meant that, unlike Napster, there was no liability on the suppliers for vicarious or contributory infringement of copyright.
The Industry was successful in the initial legal battle against Napster but it has been unsuccessful in the later ones against Kazaa, Morpheus and the like as these networks to do not depend on any central server for their operation.
Recently on 27th June 2005 in the case of Metro-Goldwyn Mayer Studios v. Grokester, US Supreme Court held that P2P file sharing is illegal and those who are encouraging users to trade songs, movies and television shows on-line without paying for them will be liable.
1.1.3) Extent of Damage by P2P Networks: Millions of people around the world have downloaded P2P softwares and are increasingly using them to exchange music, movie and software files. According to CNET.download.com there are over 2.5 million downloads per week of the Kazaa Media Desktop Software and 111 million downloads of the Gnutella-based Morpheus software accounts per week. According to The International Federation of the Phonographic Industry (hereinafter referred as IFPI)[63], an organization representing the recording industry worldwide, for the year 2001, worldwide record sales were US$ 33.7 billion dollars. The availability of free music on the Internet was blamed for the 5% drop in global sales of compact discs.[64] In the year 2002, global sales were down 9.2%. World sales recorded music fell by 10.9% in value and by 10.7% in units in the first half of 2003. Interim sales of all audio and music video formats were worth $US 12.7 billion, compared to $US 14.2 billion in the same period of 2002.[65]
The stakes as reported by the Industry are definitely high. The Industry points the finger directly at the Internet. But these figures have all been brought out by the Industry. Moreover, it can’t be said with unfailing certainty that how much of this loss is due to online piracy. So, on the question of the impact this activity is having on entertainment company profits one has to be agnostic: other factors, such as the state of the economy, and the easy availability of CD’s and DVD’s in the form and containing the tracks that users want, will also have a bearing on the sales of pre-recorded music, films and software. There is also a tendency by the entertainment industries to argue that every copy made through the medium of file-sharing is a lost sale and missed business opportunity. That begs the question as to whether the person who made the copy would have actually paid to acquire a legitimate copy had the alternative not been available.
1.2. Reaction of the Copyright Industries
For the audiovisual industry, Napster was a loud wake-up call. The online file-sharing service demonstrated that people using readily available equipment could easily download and distribute digital music and movie en masse, regardless of copyright. No surprisingly, that sent the audiovisual industry into a panic. After all,, one theory goes, if you can get digital files for free, why would you ever pay for a movie ticket or a CD?
The industry argues that online piracy eliminates the economic incentives for a business to invest millions in the production of movies, software, video games, CD’s, etc. A business will no longer get a return on its investment if a consumer can just get it for free online. In that manner Internet piracy would hinder the growth of creativity.
Shocked and dismayed, the industry in the last couple of years has been fighting this menace of ‘piracy’ on all possible fronts that include, lobbying, litigation, legislation and technological measures. The industry is starting to prosecute not only companies like Napster but also individuals who download copyrighted content and the persons who make it possible namely the Internet service providers A recent example of such litigation is RIAA v. Verizon Internet Services, Inc[66] where the Recording Industry Association of America (hereinafter referred as RIAA) served Verizon, an Internet service provider, with a subpoena demanding that the service provider disclose the identity of a user who uploaded more than 600 songs while connected to the company’s Internet service. Verizon protested, but recently a US district court judge ruled in favour of the RIAA and ordered Verizon to reveal the user’s identity.
1.3. Networks like Napster, Gnutella and Kazaa and Indian Law
Let us examine a network like Napster functioning in India which allows people to share and distribute music, films and computer software. Section 51 of the Copyright Act[67] says that in case anyone does anything the exclusive right to do which is by this Act conferred upon the owner of the copyright, his act amounts to infringement of copyright. Section 14 of the Copyright Act[68] which governs the domain of exclusive rights granted to copyright owners says that making copies of any work by using whatever medium, communicating the work to the public or issue copies of the work to public fall within the domain of exclusive rights of a copyright owner. So, if any person is running a network like Napster in India he could be liable for encroaching upon the exclusive rights of the copyrights owner as he is essentially facilitating the communication of the work to the public. In case he take up an argument like Napster that well “I am not making anything available, I just have a listing.” Even in this case the man could be held responsible under section 63 of the Act which says:[69]
a. the copyright in a work, or
b. any other right conferred by this Act, except the right conferred by section 53A shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees (Emphasis added)
In this case the person who runs such a system like Napster would be held guilty of abetting the infringement, as without such a network it would have been virtually impossible for people to share copyrighted works.
Further section 51(a)(ii)[70] says that in case a person permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement, he shall be liable for infringement of copyright. The expression any place could well be construed to mean virtual place as well.
As for the persons who actually make available and download copyrighted works, the law is very clear. Section 14 says that issuing copies of work or communicating the same to public amounts to infringement. So, a person who downloads a software like Napster and implements the same on his machine is making the copyrighted work available to any member of the public who has the corresponding software installed on his machine. The person who actually downloads the file containing copyrighted work is reproducing the work without the consent of the copyright owner, so is guilty of copyright violation as well. Section 51(b)(ii) says anyone who distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright. Any person making available copyrighted works over P2P network may not be trading in the same but he is nevertheless distributing such work which combined amount to gigantic proportions affecting prejudicially the interests of copyright owner.
Now for networks akin to Gnutella or Kazaa, where there is no central server brokering the requests of people, it is rather hard to stop the system in one go. There is no one person or entity that it managing the affairs. The entire thing is managed by a software and that is already out and lakhs of people have made copies of the same. You can’t really outlaw the installation and use of that software as it could legally be used for sharing files which are not protected by copyright. But individuals who use such software for sharing copyrighted works remain guilty under the above stated provisions of Copyright Act. But catching them is rather difficult. But, potential liability is made easier to document by the fact that P2P applications create long user sessions that present adequate opportunity to trace users back to a point of origin. The court would have to find a way to block all such network traffic at the ISP and the backbone levels of the Internet to stop people from sharing.[71]
1.4 Liability for linking under Indian Law
What liability is there for the content on a linked site? A hyperlink used by a Web site does not directly cause copying of any substantive content by anyone, but instead merely provides a pointer to another site. A surface link to a home page does not generally require permission. This position is based on the theory that going online creates an implied license for anyone with a computer to view the Web site. Simply placing a surface link is no more an infringement than the library catalogue.[72] The very fact that a person or an entity has put up a Website is in itself an invitation to all to visit the site. So, the owner of a Web site should only be happy that someone has provided a link to his Web site.
By virtue of section 14 and 51, reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. But in case of deep linking, the linking site is not reproducing any work. The reproduction, if at all, takes place at the end of the user who visits the linked page via the link. Can the linking site said to be issuing copies of the work or communicating it to the public? Technically, the linking site is only informing people about the presence of the work and giving the address of the site where the work is present. It is the user’s discretion to access the work by clicking the link. Nevertheless, the linking site is definitely aiding in the distribution of the work.
This definition of communication to the public[73] could be stretched to cover the communication of contents of a Web site on the Internet as the expression ‘by any means of display’ has been used to define communication.
Without deep linking the Internet as we know it would collapse. One couldn’t have a search engine, for example. But some grey areas do need to be addressed. It is quite different for a search engine to deep link than a competitor of an e-business Web site to do the same. Deep linking to commercial Internet databases without the permission of the content owner could raise many problems. It would be difficult for any business to see its content being used by a competitor for free just because the new technology allows it. Many publishers are moving to curtail or block permanent deep links, as more free content moves behind registration screens or is shepherded after a few days into paid-for archives. But many Web sites would welcome deep links as well.
So, should thaw be amended to stop deep linking without permission of the owner of the content? Or should the law provide complete immunity to links of all kinds? Internationally, no law till date has put a ban on deep linking. There are indeed problems in doing so. On the one hand, one has to consider the rights of the owner of content and, on the other hand, the interest of the society for which growth of the Internet is all important. The international treaties and laws do emphasize the importance of control in the hands of the content owner, but specifically they have not dealt with the problem of deep linking. It would not be proper for the Indian legislation to include a provision banishing deep links altogether because the current provisions are sufficient to check the unauthorized use of someone’s content through deep linking and using these provisions, courts can fill the vacuum by deciding from case to case basis; if a deep link has been created with bad intent and in order to derive unjust enrichment out of somebody’s content then it could be injected.
Before linking deep within a Web site, the prudent course for business and individuals would be to seek permission. And for the creators of a Web site who want that it is not linked to a pornographic or shabby site could place a prohibition in its ‘terms of use’ similar to, “do not link to this site without our express consent”. Could one be liable for linking to a site that includes illegal material? It may be best to post a disclaimer on the site indicating that the links are for information only, and do not constitute an endorsement or approval of the material on the linked *******
1.5 Inlining and Indian Law
As in linking one has to turn to section 51[74] read with section 14[75] of the Copyright Act, 1957 to test the legality of inlining. By virtue of section 14 and 51, reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. The person who employs an inline link on his site is not causing any reproduction of the copyrighted content. This is because the link’s creator never copies the pirated content; instead merely provides a visiting browser with instructions to retrieve the image, which is then incorporated into the overall page on the user’s site. Thus the only person who copies the protected image is the final user who never comes to know that his browser is fetching different elements from different ******* So, the reproduction, if at all any, takes place at the end of the user who visits the linked page via the link. Also, the creator of the inline link is not issuing copies of the work nor communicating or distributing the work to the public. But he can be said to be aiding in such communication and distribution.
Looking from another angle, the definition of communication to the public under section 2(ff) of the Copyright Act[76] could be stretched to cover the communication of contents of a Web site on the Internet as the expression ‘by any means of display’ has been used to define communication to the public.
Section 14(a)(vi)[77] grants the right of adaptation[78]only to the owner of copyrighted work. By inlining the linking site could take some elements from the linked site’s multimedia settings and create it’s own site, thereby affecting the right of making a derivative work of the linked site because taking some elements from the multimedia setting and combining them with some other could well fit into the definition of adaptation. So, adaptation rights do come in picture vis-à-vis inlining.
Inlining brings in the question of moral rights as well. Section 57 of the Copyright Act, 1957, which talks about Author’s special rights, says:[79]
1. Independently of the author’s copyright, and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right-
a. to claim the authorship of the work; and
b. to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.
2. The right conferred upon an author of a work by sub-section (1), other than the right to claim authorship of the work, may be exercised by the legal representatives of the author. (emphasis added)
First, this section allows the copyright author to claim authorship of the work. In case of inlining, the user is confused about the original source and hence may never come to know about the author of an inlined work as the user may never know from where different elements of the site have emanated. So, the practice of inlining may implicate the moral right of the author.
Second, section 57 talks about the right of integrity. The author of the copyrighted work has a right to see that his work is not being distorted, mutilated or modified. Copyrighted graphic image could be pulled into a site with its image appearing on a single page combined with other images, thus creating another work, virtually new and different form the original, thereby strongly implicating the right to integrity of the work. The combination of various elements could be termed as modification or even mutilation in certain circumstances.
Even if a Web page allows others to link to it, it cannot be presumed that it has also granted permission to link to individual elements of the page. If someone were to create a composite Web page by summoning various elements from a different Web site without necessary permission, it is clear that such a use would not be protected as fair use. By stripping an element of its context, one also strips many of the copyright privileges that may have been attached.
Should the law be amended to outlaw inlining or to allow this practice? The Copyright Act talks about various rights of owners and authors of works and describes situations where these rights can be infringed. So, there is no need for the law to be changed as such in this regard. A complete ban could restrict the growth of the Internet. At the same time owner’s content should not be subject to exploitation by one and all. In this situation, it is for the courts to decide upon the legality/illegality of inlining from case to case. The measure would always be the Copyright Act, the philosophy of which is amply clear. In case an inline link amounts to aiding in distribution or communication with dishonest intentions, the courts will come forward and declare such inlining illegal.
It is considered a breach of net etiquette to link to anyone else’s image through an inline link without permission. Consequently, one should obtain permission from the copyright owner of the image prior to creating an inlining link.
1.6 Legality of framing under Indian Law
As in linking and inlining one has to turn to section 51[80] read with section 14[81] of the Copyright Act, 1957 to test the legality of framing. The person who frames some other site’s content on his site is not causing any direct reproduction of the copyrighted content. This is because the framer never copies the pirated content; instead merely provides a visiting browser with instructions to retrieve the content, which is then incorporated into the overall page on the user’s site. Thus the only person who copies the content is the final user who never comes to know that his browser is fetching different elements from different ******* Also, the framer is not directly issuing copies of the work nor communicating or distributing the work to the public as the user’s browser is actually fetching the content directly from the owner’s site. But he can be said to be aiding in such communication and distribution.
Section 14(a)(vi)[82] grants the right of adaptation only to the owner of copyrighted work. The framing site could take some elements from the framed site’s multimedia settings and create it’s own, thereby affecting the right of making a derivative work of the framed site because taking some elements from the multimedia setting and combining them with some other could well fit into the definition of adaptation. So, derivation and adaptation rights do come in picture vis-à-vis framing.
Framing brings in the question of moral rights as well. Section 57(1)[83] of the Copyright Act, allows the author to claim authorship of the work. In case of framing the user is confused about the original source and hence may never come to know about the original source and hence may never come to know about the author. The user may never know from where different elements of the site have emanated. The creator of a frame does not literally “copy the contents of the framed page but only directs the user’s browser to summon content from another Web site and show the same along with the content of the framing site. Since the URL of the framed Web page does not appear on the screen, the user accessing a framed site may not perceive the site as being framed and may attribute the appropriated material to the home site owner. This could implicate the right of the author to be identified as such, since the user never comes to know that he is viewing content from a different site.
The author of copyrighted work has a right to see that his work is not being distorted, mutilated or modified. Content from various sites could be pulled into a single window, thus creating another work virtually new and different form the original thereby strongly implicating the right to integrity of the work. The combination of various elements could be termed as modification or even mutilation in certain circumstances.
The Copyright Act talks about various rights of owners and authors of works and describes situations where these rights can be infringed. Imagine a situation akin to the Washington Post[84] case. The world renowned news portals make huge investments in terms of time, effort and cost to bring a news report. What if someone just frames the same by a simple technique? It would be wholly unfair to do so or to allow so. In this situation, it is for the courts to decide upon the legality/illegality or framing from case to case. The measure would always be the Copyright Act, the philosophy of which is amply clear. In case a frame amounts to aiding in distribution or communication with dishonest intentions, the courts will come forward and declare such framing illegal.
[2] Legal Provisions for Technological Measures
When a digital product is made available for access on the Internet, anyone in the world becomes capable to download the product free of charge, use it without restrictions, incorporate the product into his own product and make the resulting product available in a global network, hence competing with the product of the creator himself. This is about how technology can assist a crafty person to exploit someone else’s work digitally. In order to fight this loss of control over the product in the digital environment the legal instrument as such are not sufficient. To a large extent the solution to a loss in technical control is being sought in technology itself.
Increasingly, technological solutions are being found for the problems posed by the new technologies through access control or copy control mechanisms such as encryption technology or water marking incorporated into works distributed over digital networks with a view to protecting them from illegal exploitations. Encryption, watermarking, coding, encapsulating copyrighted works in a tamper-resistant electronic envelope, electronic lamination, etc., have already been experimented with.
The need of technology is not only for preventing the work from being stolen and misappropriated, but also for detecting infringements and misappropriations.
Technological measures are technologies, devices or components that. in the normal course of their operation, are intended to prevent or inhibit the infringement of copyright or any right related to copyright or sui generis right related to databases. Such measures are, for instance, encryption and decryption, de-scrambling or other transformations of the work.
The electronic future prospected in the in the U.S. White Paper[85], as well as that for which most content providers are getting prepared, implies massive use of technological measures.[86]Technical measures can control and limit access and copying of the copyright material and are able to protect a service (Pay TV, Web sites) or some specific content.[87] Another kind of technological protection is the one offered by the RMI that can support digitised works, specifying the name of the work and of the author, the owner of any right in the work, the terms and conditions of use of the work and any number or code representing such information.
Copyright owners, willing to exploit such potential, put vigorous pressure upon the legislator in the last years for the inclusion of specific previsions about technological measures to protect copyright. The point of the right owners was that technical measures as such would not have been effective if not coupled by adequate legal protection: circumvention of such measures should thus have been legally sanctioned.
2.1 World Copyright Treaty, 1996
Under art. 11 of WCT,[88] "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 their rights […] which are not authorised by the author concerned or permitted by law".
Art. 12 of the Treaty obliges contracting parties to provide adequate and effective legal remedies against any person knowingly performing certain acts being aware that in doing so he will induce, enable, ease or conceal an infringement of any right covered by the Treaty or the Berne convention. Such conduct shall consists in: (a) the removal or alteration of any electronic rights management information without authority; (b) the distribution, import for distribution, broadcasting or communication to the public, without authority of works or copies of works knowing that electronic rights management has been removed or altered without authority.
While the provision concerning the Rights Management System did not raise any particular criticism, the adoption of the language provided by in art. 11 provoked an intense debate both in the drafting phase [89]and in the further analysis carried by some scholars[90]. The Digital Millennium Copy Right Act (hereinafter referred as DMCA) and the proposed EU directive expressed even greater disagreement, with reference to the implementation of this article on copyright.
In particular, serious concern has been expressed as to the possible consequences of the adoption of these technical measures and of concrete the enforcement of the rule set forth in art. 11.[91] In fact, circumvention of these measures could be held as an infringing behaviour both in case of would-be pirates trying to force the barrier held by the technical devices and in case of lawful exercise of a fair use exception; but as the wisely underlined not all circumvention is bad. Why should a person - even assuming he is able to do so - be obliged to circumvent a technical measure in order to benefit under a fair use exception to copyright? And what about technically protected works, which have already fallen in public domain or that, are not entitled to copyright protection for lack of creativity?
In this fashion the digital era, despite of the fears expressed by right holders, is more likely to affect the exercise of exceptions rather than the exercise of rights. [92]
Protection of technical measures may bring to even more broad distortions of the present IP legal system depending on the way legislators does tackle the problem of the manufacture of devices and equipment, which are able to circumvent technical measures.
There are basically two approaches to address this objective: the "act approach" or the "device approach". Legislators may opt for specific sanctions targeting acts of circumvention without authority or for the broader solution to punish people that import, produce, market or sell technical devices that may disable technical protection.
2.2 Digital Millennium Copyright Act, 1998
Moving beyond from the WTC provisions, the US opted in the DMCA for this broader scope of protection but provided for substantive exceptions and limitations to that principle.
The DMCA expressly prohibits on one side the unauthorised access to a work by circumventing technical measures put in place by the author. On the other side it prohibits the manufacture or making available of products and services that defeat measures controlling access or measures that prevent reproduction.
The DMCA, on the same vein of EU proposed directive, prohibits devices that are primarily designed or produced for the purpose of circumventing; that have only a limited commercially significant purpose or use other than to circumvent; or are marketed for use in circumventing. Anyway, in order to reset a proper balance with public interests need was felt in the drafting phase of such Act to clearly define the borders of this strengthened copyright by granting some specific exceptions. [93]
Anyway, the DMCA shall be considered as midway between WCT and the EU proposed directive.
2.3 The EU proposed Directive on Copyrights
This proposal, which has opted as for a "device prohibition" policy, despite of its being not yet enacted has already been received with harsh criticism by scholars.
Here again, in addition to the sanctioning or mere circumvention of technical measures, specific language was added in order to provide for adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services that; are promoted, advertised or marketed for the purpose of circumventing; have only a limited commercially significant purpose or use other than to circumvent, or are primarily designed or produced, adapted for the purpose of enabling or facilitating the circumvention of any effective technological measure.[94]
It is worth noticing that this "device approach”, which both EU and US opted for, may give rise to a number of major concerns.
The "device prohibition" policy clearly aims at anticipating the forbidden conduct punishing acts that may lead to circumvention, in order to prevent massive infringement. Therefore, Member States shall use this policy very cautiously. The risk would be otherwise to unjustifiably put the burden of the proof as to rightful behaviour upon the manufacturer/dealer. This would impose an unsustainable degree of uncertainty over these subjects: any device as such may be used for proper or unlawful purposes. As a result devices able to defeat technical measures could simply disappear from the market, at least the "official one": was this the original aim of the legislator?
In short, the outcome of this new set of rules may be that those limitations of the copyright which in the analogue world successfully balanced the interests of the right owners with the ones of the public might not apply anymore, due to an undesired effect of these new provisions. To make a long story short, anti-infringement measures for the digital era do not appear to be accompanied by sufficient ad-hoc exceptions.
2.4 Indian Position
Technological protection measures are designed to prevent, in the digital networked environment, the unauthorized access to or use of works protected by copyright. Their legal protection comes as a third, cumulative, layer of protection for rights owners, in addition to copyright protection itself and to the technical protection of work.
As per the Copyright Act, 1957 knowingly making or possessing any plate for the purpose of making infringing copies of a copyrighted work is a punishable offence.[95] The definition of ‘plate’ under the Copyright Act is very wide indeed. It includes:[96]
In any stereotype or other plate, store, block, mould, matrix transfer, negative duplicating equipment or other device used for or intended to be used for printing or reproducing copies of any work, and any matrix or other appliance by which sound recording for the acoustic presentations of the work are or are intended to be made.
This definition to a great extent provides protection for the technological protection measures adopted by a copyright owner. Taking a lead from Article 11 of the WCT some countries of the world have already enacted anti circumvention provisions like in Digital Millennium Copyright Act, 1998 in USA, in Australia in 2000, European Directive 2002 and in Canada and Japan. The debating point for India is whether to put such provisions in the Copyright Act, 1957?
The basic principle of copyright like other intellectual property rights is the balance of the interests of the individual creator and that of the society at large. The limitations placed on copyright serve to balance the interests of authors against the legitimate interest of the copyright industry, users and the general public especially in freedom of information and freedom of intellectual creation. Therefore, the laws while granting exclusive rights to authors or producers of creative works limit those rights in time. Even during the period of copyright, certain special uses are allowed without any specific permission from the copyright owners such as for private, academic, educational, judicial or legislative purposes.[97]
The exclusivity of copyright is indeed based on law and the same is balanced by ‘fair use’ provisions. Technological protection measures allow the exclusion of uses. However, while copyright is limited in many ways, exclusivity based on technology is potentially unlimited. It may, for example, be possible by way of technology to exclude others from using information which is not copyrightable, or to exclude acts which are not restricted acts under copyright, either because they do not fall under the definitions of the exclusive rights or because they are explicitly exempted by way of fair use.[98] With the technological protection measures and accompanying legal provisions against their circumvention, the exclusivity of copyright is sought to be extended over and above what was envisaged by the legislature.
How should the legislature deal with this phenomenon of expanding exclusion? Should the policy which is expressed in copyright law, of which the limitations on the right are an integral part, be preserved – or should the broader exclusivity based on technology be endorsed? The legislator must decide either to maintain the limitations on the control that a copyright holder can exercise over the use of copyrighted product, or to in effect protect technological measures. Technology – at this stage – is simply not developed enough to accommodate all the subtleties of the law. A complete reliance on the exclusivity based on technology could result in gagging of fair use which will be fatal to the balance represented by ‘copyright’.
One more challenge to the future copyright system is the development of a highly restrictive contractual practice (click-wrap licenses), which tends to sensitively diminish the scope of the rights granted to the user. The user who is willing to buy a copyright product on line, by clicking on the suitable button of the seller's web page, automatically accepts terms and conditions of the license granted by the right owner. One of the issues to be soon addressed shall be to assess the validity of contractual provisions that curtail user's privileges derived by law.
Conclusion
There is an urgent need to strike a balance whereby online copyright infringement is prevented without interfering the legitimate uses of software and computer programmes or limiting the opportunities offered by digital technology and the Internet, Combating software piracy in order to foster the growth of electronic commerce requires a multi faced strategy. Most people do not purposely break the law. They would never consider stealing a package of software from the shelf of a retail store. But those who copy software without authorization is also stealing intellectual property, and they should also understand the consequences of their action both under civil and criminal action.
We cannot simply rely on legalistic interpretations because technological developments may marginalise copyright as a force in creative and commercial affairs. Dramatic growth in broadband communications, convergence of technology systems, digitalisation of content and the globalisation of human interactions have changed the context within which copyright operates. Copyright exists to regulate the use of content and to balance the rights of creators and the general public.
In the digital domain, there is some uncertainty whether copyright is the most suitable regime to undertake this function. Due to the nature of digital content, a combination of commercial, technological and legal solutions will be utilised to manage copyright material.
Indian Information Technology Act 2000 and Communication Convergence Bill 2001 did not talk about copyright.
Owners need to explore the potential for the application of technological solutions that substantially discourage or even prevent unauthorised use and dealings. Digital watermarks and content that relies on network access provide two of the most promising examples of these. Business entities can be expected to adapt existing schemes and to develop new ones to deal with the challenges of new environments. This has been and will continue to be the case in the context of digital copyright.
Some of the business solutions are such that they would be successful in the absence of technological or legislative developments. However, most of them rely on technological measures for their efficacy. The technological measures to combat piracy are essential coupled with strong legal protections must be adopted and more importantly, vigorously enforced worldwide, if sufficient intellectual property incentives are to be upheld. The copyright laws do not appear to have developed adequately in line with technological advances. In the absence of suitable legal rules and regulation, digital technology has the potential to undermine the tenets of copyright and related rights.
Moreover, the adjustments that had to be introduced to update copyright rules, namely, the WCT and its implementing Acts, considerably strengthened copyright to such extent that right owners will now have stronger rights than ever before and the rights of users are going to be confined to those for which they had specifically contracted and paid.
Surely, one may say that this reinforced right holder's position shall hardly counterbalance the threats of piracy. Provided this, the very challenge for copyright in the digital era shall be to maintain the delicate balance between the right owners' and authors' interests and the public interests that successfully contributed to progress in the analogue era.
[1] The advent of Radio broadcasting and later that of the television broadcasts followed by the photocopying machines. Copyright law managed to encompass these changes without having to be changed.
[2] The WIPO Copyright Treaty and The WlPO Performances and Phonograms Treaty
[3] Ian McDonald, Digital Publishing and Copying: Issues for Authors and Publishers. at P .87
[4] John Perry Barlow, The Economy of Ideas; Lewis Lee & J Scott Davidson, Intellectual Property for the Internet at P. 77
[5] Virtual reality has been described by some as an interactive world or a "consensual hallucination" -Nick Weston. Copyright and Virtual Reality Technology: A Bandaid on the Bleeding Edge. P. 72
[6] Dr Andrew Christie. Towards a new Copyright for the New Information Age. P. 146; see also Copyright Convergence Group, Highways to Change - Copyright in the new communications environment P.4.
[7] In the context of text files, the Rich Text Format (RTF) has become a de facto standard for some purposes.
[8] ie the Berne Convention for the Protection of Literary and Artistic Works 1886 and the WCT
[9] However, computer software posed some problems when it first received protection under the copyright law.
[10] Natalia Yastreboff. Copyright for online databases on the Internet - Part I. P. 36 [quoted from the Highways to Change - Copyright in the new communications environment report]
[11] Highways to Change - Copyright in the new communications environment at 3, citing the 1992 OECD report, Telecommunications and Broadcasting: Convergence or Collision.
[12] (1997) 37 IPR 495.
[13] The Digital Agenda Act received royal assent on 4 September 2000 and Commenced on 4 March 2001.
[14] This is based on a land transport analogy. Current communications are likened to a narrow street and are compared to the future systems being a broad highway (also known as the superhighway). The label broadband is also based on a pipeline analogy. Previous generations of communications links have been likened to a narrow pipe through which only small amounts of data can be transported at any one time.
[15] Copyright Reform and the Digital Agenda (Proposed Transmission Right, Right of Making Available and Enforcement Measures) at 3.48
[16] Although strictly speaking the term is a misnomer, it captures the concept of a cross content presentation. The media involved (the form of presentation or storage) is actually singular (typically a CD-Rom), it is the contents of the storage media that have multiple characteristics.
[17] Sec. 2(o) of the copyright Act. The same provision extends the protection granted to intellectual creations to compilation of data by reason of their selection or arrangement of contents.
[18] (1997) 37 IPR 462
[19] Media Technology Group, Allen, Allen & Hemsley.Current Information Technology Issues in the Pacific Rim.P. 20.
[20] News Section: National Reports [1997] 2 EIPR 37 at 38
[21] News Section: National Reports [1997] 9 EIPR 229
[22] News Section: National Reports [1997] 9 EIPR at 232
[23] (1995) 4 SSA 229 (TPD) [cited in News Section: National Reports [1997] 2 EIPR at 39]
[24] News Section: National Reports. 9 EIPR 1997. P.232. It can also be said that the images themselves were only created immediately prior to them being presented by the computer itself.
[25] Copyright Act, 1905 of Australia, Section 4
[26] Concise Oxford Dictionary.
[28] i.e. from source code to object code.
[29] Concise Oxford Dictionary
[30] (1991) 22 IPR 245
[31] See the discussion of the WIPO proceedings under the heading "Transient copies" in the section "Possible legislative changes".
[32] (1991) 22 IPR 245.
[33] [1985] FSR 306 [cited in Roland at 252]
[34] (1991) 22 IPR 245.
[35] [197] 991 F 2d 511 (2nd Cir 1993) [cited in Ronald Katz & Lateef Mtima, "Uncertainty Reigns in software cases"].
[36] Ronald Katz & Lateef Mtima [quoting from the judgement - (1993) 991 F 2d 511 at 518-9].
[37] Copyright Reform and the Digital Agenda P. 340.
[38] See, S. 14(a) and (d) of Copyright Act, 1957.
[39] S. 2(d) of Copyright Act, 1957. See, TC James, “Indian Copyright Law and Digital Technologies” Journal of Intellectual Property Rights Vol. 7, No. 5, 429 (2002).
[40] Copyright Act, 1957 of India
[41] Bern Convention
[42] TRIPS Agreement
[43] S. 13(4) of Copyright Act, 1957, provides: “The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the sound recording is made.”
[44] As per S. 38(4) of Copyright Act, 1957, once a performer has consented to the incorporation of his performance in a cinematograph film, his performer’s right in that performance ceases to exist, whereas in the case of other classes of works there is no such provision.
[45] See, Thomas Dreier, “Copyright Law and Digital Exploitation of Works - The Current Copyright Landscape in the Age of the Internet and Multimedia”, available at: http://www.intellecprop.mpg.de/Online-Publikationen/dreier-Digi-Exploitation.html#sub,atp. 31 , para 6.1.
[46] Art. 12(2) of WCT.
[47] Art. 12(1) of WCT States:
“Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.
[48] “Primer on Electronic Commerce and Intellectual Property Issues”, WIPO Document No. WIPO/OLOA/EC/PRIMER, para 125, (2000).
[49] See opinion by P. Schonning.The Internet and the applicable copyright Law: A Scandanavian Perspective".. In E.I.P.R 1999 . 45.
[50] Berne Convention Article 5 (2)
[51] The Berne Convention refers to lex loci delicti
[52] See the Satellite and Cable Directive 93/83 of September 1993
[53] See W.Cornish (1999) at 13-72 and P.Schonning (1999).
[54] As there are many countries involved, the possibility of forum shopping arises.
[55] www.napster.com
[56] Technically, all computers can be divided into two categories, client and server. A client computer avails of the services provided by the server computer and the server computer serves the client computers.
[57] See, Jason Scott and Keith Taylor .Piracy in Cyber Space: The Battle Over Digital Music on the Internet. available at: http://gsulaw.gsu.edu/lawand/papers/fa02/taylor.
[58] A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), available at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court-9th&navby-case&no=0016404&exact=1.
[59] Any computer using Kazaa Media Desktop can become a supernode if they have a modern computer and are accessing the Internet with a broadband connection. Being a supernode does not affect the performance noticeably. If your computer is functioning as a supernode other Kazaa Media Desktop users in your neighbourhood will automatically upload to your machine a small list of files they are sharing, whenever possible using the same Internet Service provider. When they search, they send the search request to you as a supernode. The actual download will be directly from the computer who is sharing the file, not from the supernode. The download goes from them to the person who wants it.
[60] Cause list number KG 01/2264 odC (Judgement passed by the President of the Amsterdam District Court on November 29, 2001).
[61] Kazaa v. Buma and Stemra, Judgement delivered by the Amsterdam Court of Appeal (Fourth three-judge civil section) on March 28, 2002.
[62] MGM Studios Inc and others v. Grokster Ltd and others, decided by the US District Court for the Central District of California on 25 April, 2003.
[63] IFPI comprises a membership of more than 1500 record companies, including independents and majors, in over 70 countries (http://www.ifpi.org/).
[64] IFPI, http://www.forbes.com/asap/2002/1007/006.html.
[65] See, ibid.
[66] RIAA v. Verizon Internet Services, Inc., 240 F Supp. 2d 24 (i.e. First Subpoena Decision) D.D.C., 2003.
[67] Supra note 145.
[68] Supra note 144.
[69] S. 63, Copyright Act, 1957.
[70] S. 51(a)(ii), Copyright Act, 1957.
[71] The exact liability of ISPs and how one could go about tracing copyright infringers with the aid of ISPs is described in the subsequent section on the liability of ISPs.
[72] G.R. Ferrera, S.D. Lichtenstein, M.E.K. Reder, R. August, W.T. Schiano, Cyber Law: Text and Cases. West, 2001. P.71
[73] Making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member actually sees, hears or otherwise enjoys the work so made available. (emphasis added)
[74] Supra note 186.
[75] Supra note 185.
[76] S. 2[ff], Copyright Act, 1957. See, supra note 187.
[77] Supra note 185.
[78] S. 2(a), Copyright Act, 1957 states:
“adaptation” means, -
i. in relation to a dramatic work, the conversion of the work into a non-dramatic works;
ii. in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise;
iii. in relation to a literary or dramatic work, any abridgment of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;
iv. in relation to a musical work, any arrangement or transcription of the work; and
v. in relation to any work, any use of such work involving its rearrangement of alteration.
[79] S. 57, Copyright Act, 1957.
[80] Supra note 105.
[81] Supra note 104.
[82] Ibid.
[83] Section 57 Copyright Act, 1957.
[84] Washington Post Co. v. TotalNews, 97 Civ. 1190 (S.D.N.Y.)
[85] The US White Paper is a document issued on 1995, by the Information Infrastructure Task Force Working Group in Intellectual Property Rights, appointed by Clinton's administration, to address policy recommendations to promote development of the national information infrastructures.
[86] P. Samuelson. The U.S. Digital Agenda at WIPO. (1997). In F.Abott, T.Gottier and F.Gury (1999),
The international intellectual property system: commentary and materials. Hague. Kluwer Law International.
[87] T. Vinje. Copyright Imperiled. E.I.P.R . 1999, p. 196
[88] Art. 11 of WCT states:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used b y 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 b y the authors concerned or permitted by law.
[89] P. Samuelson (1997).
[90] T. Vinje. A brave new world of tech11ical protection: will there still be room for copyright? .In E.I.P.R., 1996 . p. 431. The same author more recently has confirmed his position in "Copyrights imperiled, " E.I.P .R. 1999,p.192 .
[91] According to, T. Vinje (1996), technical protection systems will be deployed not only to prevent infringing reproduction but also to hinder lawful reproduction, i.e. falling under one of the cases of fair use. That is to say that technical measures can exceed, in away, the level of protection granted by copyright and may be able to impede the full operation of the fair use mechanism
[92] T. Vinje (1999), id, p.197.
[93] Significantly, fair use exceptions were inserted in DMCA as to circumvention for the purposes of reverse engineering, for the benefit of encryption research, for tests to measure the security of a computer and for law enforcement and intelligence activities.
[94] According to scholars such provision is not coupled with adequate exceptions and limitations and strongly unbalances the previous system to the benefit of right owners.
[95] S. 65 of the Copyright Act, 1957:
Possession of plates for purpose of making infringing copies. – Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.
[96] S. 2(t) of Copyright Act, 1957.
[97] See, s. 52, Copyright Act, 1957.
[98] L. Lessig, Code and Other Laws of Cyberspace, (New York: Basic Books, 1999); J.R. Reidenberg, ‘Lex Informatica: The Foundation of Information Policy Rules through Technology’, Texas Law Review 568-581 (1998); L. Lessig, “Intellectual Property and Code”, St. John’s Journal of Legal Comment635-639 (1996).
