“Digital Transformation of Copyright Laws in Indian Perspective”

(Part-II )

By

Vishnu Prakash Mishra

Research Scholar

University of Allahabad

 

Challenges for copy right in Indian legal perspective:

The primary problem that legal experts confronted with was whether e-publication can be regarded within the scope of publication under the traditional copyright norms. It was accepted that the term ‘Publication’ in Berne Convention, 1971 has been given a much wider meaning. The expression "published works" meant works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. The WIPO Copyright treaty accepting a similar stand considered that this new form of publication could be included within the definition of publication. The United States Courts in a series of decision tried to develop a legal understanding in this regard. In the first important case before it, the court very well summed up the position by stating that loading a computer program into the RAM of a computer constituted the making of a copy within the purview of copyright law . The next issue was did Conventional Copyright Code Covers e-Content. In Video Pipeline v. Buena Vista Home Entertainment, the court found that posting Internet content derived from copyright protected material constituted copyright infringement and held that a retailer's Web site cannot lawfully promote movies with a Web site button that allows Internet customers to view a third-party site that shows unauthorized trailers for selected movies. In its decision, not only did the court conclude that the copyright statutes were applicable and had been violated; it also found that two traditional copyright doctrines were applicable to Internet transactions. The court found that the posting was not defensible under the first-sale doctrine (§109(a) of the Copyright Act) or the fair-use doctrines (§107 of the Copyright Act), it confirmed that traditional copyright doctrine are applicable to the Internet. The third landmark decision electronic publications were no longer regarded as just an addendum to print publications. The Supreme Court of United ruled that copyrights to works published electronically are separate from copyrights in the traditional publication of the same work.

Similarly in the Copyright Act, 1957 “Publication” means makes a work publicly available. Therefore the common criteria that appears are

The Indian Copyright Act specifically states the necessary conditions required satisfying by a works to enjoy copyright in section 14. In Subsection (a) the conditions includes reproduction, including storing by electronic means, issuing copies and communication to public. The Copyright Act 1957 defines communication as making a work available to public, directly or by means of display or diffusion regardless to whether actually public sees or hears. In Mohendra Chandra v. Emperor the High Court of Calcutta have regarded there is no reproduction if there is no copying.

The conditions that are specified in sub-section (a) of Sec 14, Sec 3 and definition of communication under the Copyright Act, 1957 establishes that e-publications are published works and subjected to enjoy right under the Copyright Act. The position is very well recognized under Copyright Act, 1957 since electronic reproduction and distribution is covered under the Act. They are major conditions required to satisfy for getting copyright protection under the Act. Therefore it can be safely concluded that e-publications are recognized in India and similar rights will vest on the works. However unlike the US position it remains very unclear that whether some separate provision is necessary to safeguard the e-publications. There is no judicial decision in India and in its absence the paper will try to explore the same in the subsequent paragraphs.

The next important issue involving Internet publication is the right of reproduction. Under current technology, information is transmitted through the Internet using a technique known broadly as packet switching. Specifically, data to be transmitted through the network is broken up into smaller units or packets of information, which are in effect labeled as to their proper order. The packets are then sent through the network as discrete units, often through multiple different paths and often at different times. As the packets are released and forwarded through the network, each “router” computer makes a temporary (ephemeral) copy of each packet and transmits it to the next router according to the best path available at that instant until it arrives at its destination. The term reproduction as defined in the Copyright Act, 1957 state reproduction in any form including storing in machine-readable form. The problem that will emerge that if the law categorizes all interim’s and received transmissions as copies for copyright law purposes, then a broad range of ordinary activities on the Internet, such as browsing, caching, and access of information, may fall within the copyright holder’s monopoly rights.

Another major issue that has received wide recognition involves protection of technological measures that the author or publisher may use in the work against unauthorized uses and protection against alterations of the copyright management information. The present Copyright Act, of 1957 is inappropriate to resolve these issues, as it contains no provision to respond to the cause.

Global Response to This New Challenge:

The international community has no occasion to address the copyright problems posed by the digital technology till recently. This is evident from the fact that the TRIPS Agreement has no provision to solve these problems. These issues for the first time caught attention in the WIPO Copyright Treaty, in 1996. The treaty was a result of international negotiation to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible. The primary objective of WCT was to recognize the needs to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments. The treaty obligated the Member State to act upon the challenges that have been thrown by the new technology.

Just as the issue of whether transitory images of data stored in RAM constitute copies is unsettled under current United States case law, the language of Copyright Treaties recently adopted by the WIPO, in 1996 leaving the issue unclear as well. The major achievement of WCT is the provisions regarding protection of right. It has made obligatory on the part of the member states to take adequate measures to

Many western countries have enacted new legislation in response to the World Intellectual Property Organization Copyright Treaty. The Digital Millennium Copyright Act 2000 implemented statutory changes to the U.S. Copyright Act. Apart from the general measures that were specifically required to make the copyright regime more effective, special and innovative provisions were incorporated. Section 103 of Title I of the DMCA created a new Chapter 12 to the U.S. Copyright Act. The Act prohibited the circumvention of copyright protection devices if the lawful copyright owner has put them in place in order to control access to a copyrighted work. Title II of the DMCA which is also known as the "Online Copyright Infringement Liability Limitation Act" provides exemptions or "safe harbors" from liability for claims of copyright infringement that arise out of the following activities: routing, caching, storage and linking. Title II of the DMCA amended Chapter 5 of Title 17 of the Copyright Act to provide a safe harbor for Internet related service providers from direct, contributory and vicarious copyright infringement liability. The act provides a statutory basis for a copyright owner to subpoena a service provider to require it to disclose information regarding alleged infringes. The DMCA also exempts a service provider from liability for removing “infringing” material at a customer’s request, if such action is done good faith.

Economic and Social benefits of a thriving Software Industry

Studies conducted across the world have shown the significant economic and social benefit to a nation with thriving software industry. The year 2003 study conducted by IDC-BSA titled Expanding Global Economies: The Benefits of Reducing Software Piracy emphasized that Information Technology, driven by software industry is a proven engine for economic growth and prosperity. The study representing the analysis assessing the impact IT has in 57 countries around the world and the economic benefits that accrue to countries that tighten and enforce their intellectual property laws, states:

Conclusion

Today it can be affirmatively stated that IPR plays a great role in furthering the growth of IT industry and thereby increasing investment that will further benefit the nation at large.

However, in addition to the policy changes that may be required at the legislative level, an awakening of the corporate players in the market may well be in order - an awakening to the importance of intellectual property and its role in the future of any corporate.

References

• Copyright in the New World of Electronic Publishing, William S. Strong, Presented at the workshop

•  Advanced Copyright Issues on the Internet, David L. Hayes,

• Video Pipeline v. Buena Vista Home Entertainment , 2002 U.S. Dist. LEXIS 5400