A Reflection Upon the Digital Copyright Laws in India

INTRODUCTION

Intellectual property rights (IPR) are those absolute rights which are granted to the authors/creators for the purpose of protection against Copyrights of intellectual property, which is the valuable asset of their intellectual labour. The Copyright legal protection of IPR principally serves double-edged purpose, primarily, it encourages the author/creator community to produce more intellectual property (IP) by providing exclusive rights of its utilisation in their favour and secondly, it also promotes the social welfare as all the Intellectual Property comes into the public domain after a fixed period which can be utilized freely for the development and public good. The laws which are relating to the intellectual property rights are best example for establishing the relationship between law, science and technology. The development in the technology has certainly increased the importance of IPR in present scenario. The effects of the digitalization can be seen best in the copyright regime. Internet is notably the easiest way to retrieve and also disseminate information and where the problem begins. The digital piracy of copyrighted works is also becoming a regular phenomenon. The concepts like protection of “the computer programs, digital rights management, technological circumventions”, etc. are gaining the importance. The new technologies, which begin from revolutionary printing press to Photocopy machines to the World Wide Web, have been constantly expanding scope and the subject matter of the copyrights. As a result of which the revisions to the copyright laws are made to keep the same in tune with the moving technologies and also to combat the challenges posed by it. It is recognized worldwide that the copyright piracy is a serious crime which would not only adversely the affects of creative potential of society by denying the authors/creators for their legitimate dues, it also causes the economic losses to all who had invested their money in bringing out the copyrighted materials in numerous forms for the use by end-users.[1]

The advancement of the technology, mostly the internet services, has not only made copyright piracy an extremely uncomplicated task but also been posing the potential threats to copyrighted works through “caching and mirroring, linking, framing, archiving, peer-to-peer networks”, etc. This article aims mainly to address the aforementioned issues and legislative response in India.

COPYRIGHT IN DIGITAL AGE

The rapid advancement in the technologies have been consistently impacting the functioning of the copyright laws and also expanding its scope and the subject matter. For the owners of Copyrights, although the digital technology provided them with the highest quality of the digital copies and also increased the ability to copy and distribute the works, and the same technology has jeopardized their ability to enforce the rights in the cyberspace world. The unprecedented acceleration which was provided by advancing technologies to the dissemination and also reproduction of the digital content with considerable speed, accuracy and then no loss of quality is commendable. Nonetheless, the digitization of copyrights has simultaneously made such alteration, mixing and also manipulation of the identical piece of information more or less an effortless task, which would be a great threat to the copyrighted works. In the cyber space [2], everything is available at a click of a button by easing the task of not only retrieving the information but also storing of it and also further distributing it with the precision and that too at a very low cost, by escalating the unauthorized use of copyrighted works.[3]

ADVANTAGES OF DIGITAL TECHNOLOGIES IN COPYRIGHT REGIME 

1. Ease of Dissemination: The digital technology facilitates the simple, speedy and the global dissemination of work without any loss of quality and also at a very less price. Once the information from a single source reaches the recipient/s, then the digital networks allow the recipient/s to further disseminate same to the multiple recipients. The consumers do not face any traditional hurdles of disseminating the copyrighted work by using the online mediums. 
2. Faster Access to Digital Material: The ubiquitous nature of the internet facilitates the easy and fastest access to material at the digital platform to the consumers who require such creations for their own benefit. 
3. Ease of Storage: The digital medium offers an excellent and dense mode of storing the copyrighted content as compared to traditional ones. The CDs, pen drives or hard disks are able of storing the entire library. 
4. Easy Reproduction: The digitization of the copyrighted materials which renders its reproduction a painless task. But owing to the magnificent advancement in such related technologies, it is now very easy to reproduce the digital contents with precision and quality at a faster pace. In such manner, one single copy can cater to the needs of the millions with help of the relevant software and also the high-speed internet.[4]
5.  Time Effective: When everything is available at the single click at one stop, time is bound to be saved. The digital technologies have made the dissemination of the copyrighted contents as a time saving task for both stakeholders, i.e., the authors as well as consumers of such work. It also enables authors to make available such creations online, thus, by saving their time in searching appropriate market for the same. Further, the consumers’ time in going such places to search the material, by digitalization is available at just a single click, which is also saved. 
6. Cost Effective: The digital technologies which are proving not only the time effective but also extremely cost effective too, for both creators of the copyrighted contents as well as consumers. The dissemination and consumption of the copyrighted material through digital medium reduces the economic cost of the same by owing to omnipresence of the internet and also less expenditure on the reproduction set-ups and search costs.
7. Facilitation of Direct Publication by Authors: The digital medium offers an open platform to the authors to directly disseminate their contributed works without intervention in the form of the traditional publishers. The traditional way of dissemination of work involves an intermediary in the form of publishers etc. to provide an adequate platform for the dissemination of the work, however, in the digital media authors can directly make available their work to targeted audiences with the intermediaries playing fewer role.
8.  Platform for Creation of New Kind of Works: with the advent of digital technologies has given a rise to completely a new set of ‘works’ like ‘multimedia works, computer software, databases’ etc. adding such stars to the entertainment industry and revolutionizing the work culture of the almost all fields using such information and communication technologies”.[5]

CHALLENGES POSED BY DIGITAL TECHNOLOGIES TO COPYRIGHT REGIME

1. Holder: The core concept of copyright is to prevent the copying of ‘work’ without the permission of copyright holder. As discussed in the above, the digital medium facilitates very easy dissemination of the copyrighted work, however, for the want of strict regulation of its copies, which are created effortlessly and disseminated to the millions of users by causing economic loss to copyright holder. The digital platform allows mass distribution of to the copyrighted work by making it extremely difficult for the copyright owners to identify and bring those actions against the number of the individuals, who are involved in the infringement of their copyrighted works.

2.  Plasticity of Digital Media: In the digital medium, the users comfortably alter, adapt, modify, or manipulate those works. Such flexibility and plasticity, which are offered by those digital media were altering and modifying those digital content as a gentle task, which raises such concerns for the authors and owners as to how their original content work shall be dealt with. Any as such unwanted and the unauthorized addition or deletion in the original content has potential change to the entire meaning which may not be the intent or desire of the creator.

3. Caching and Mirroring: The Caching (sometimes called as “mirroring,” usually when it involves the storage of an entire site or other complete set of the material from a source) which means storing the copies of material from an original content source site (such as a Web page) for the later use when the same such material is requested again and again, thereby obviating need to go back to the original content source for such material. The purpose of caching is “to speed up repeated access to data and to reduce network congestion resulting from repeated downloads of data”. This storage of such material is temporary in nature, though the time may vary from few seconds, minutes, to hours to days. The caching poses a potential threat to the copyrighted material as the same material is copied and stored for the future reference thereby negatively affecting those interests of the copyright holders. 

4. Linking and Framing: The linking and framing, in general, is a technique of connecting those documents in online medium or the platform. In linking, a link is used which has “embedded electronic address of another website pointing towards the same”. When a person clicks on the particular link it takes the user to destination site and also enables him/her to view those contents which that the site offers. Framing is a type of linking, where those linked content is displayed on host site within “frames”. The two linking and framing pose those challenges to copyright holders of the digital contents where the linked content is copyrighted material and the permission of copyright holder has not been obtained. The other challenges posed by the digital technologies posed by the copyright regime are Jurisdiction issues, Maintenance of Digital library and archiving, peer-to-peer networks, establishing liability and the woks created by the machines.”[6]

INDIAN SCENARIO

In India, the Copyright Act, 1957 which governs the copyright regime. It grants an exclusive right,[7] strictly statutory in nature and having some temporal limitations attached to it. The formal structured copyright laws began its journey from “The Copyright Act, 1914” which was based upon the “U.K. Copyright Act, 1911”. To keep copyright laws in tune with the technological developments which are taking place and to also fulfil international obligations, a much need for a new Act, which was felt and consequently the present ‘The Copyright Act, 1957’ was passed. Till the date there have been 7 amendments[8] to this Act, amending those provisions thereof to meet the present modern-day challenges. The 2012 amendment to ‘The Copyright Act, 1957’ is a celebrated move by the legislature so far, the context at its hand is concerned. The following are some of the points that reflects upon the digital the copyright protection under ‘The Copyright Act, 1957’: 

1. The Act acknowledges the ‘computer-generated work’ as it recognizes those persons who causes such work to be generated as ‘the author’ of the said work. However, it nowhere defines as such what “computer generated” work is. Further, with Artificial Intelligence (AI) gaining momentum, the ownership of ‘AI’ generated work has become a debatable issue which needs effective settlement.
2.  The definition clause defines “broadcast” as a meaning communication to the public by any means including a ‘re-broadcast’. Broadcast being a ‘technological development’ assisting in the communication of work to public using electronic medium or platform. 
3. Section 2(ff) defines “communication to the public” as making “any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display”. This definition can be extended to cover the aspects within its ambit of the dissemination of work in digital content form yet a ‘lucid’ definition dealing with ‘digital dissemination of work’ is need of the hour, which considers the ease of work can be ‘disseminated to millions of users online’ with just a single click with attached perils.
4. ‘Copyright protection’ is accorded to computer programmes and databases as a ‘literary work’. Sections 2 (ffb) and (ffc) define “computer” and also “computer programme” respectively. 
5. The reproduction of ‘literary’, ‘dramatic’, ‘musical’ or ‘artistic’ work otherwise than in the form of ‘cinematographic film’ is considered an “infringement”. The reproduction in digital era is something easy yet difficult to locate the owing to ‘technical obstacles’. Further, the reproduction of the copyrighted work in its digital form, due to some technicalities and functionalities of concerned media, sometimes is an inadvertent, for example, ‘the storage of copy of work in temporary memory’ of a system. The Act needs to address those issues where such incidental storage owing to the technological process is resulting into the loss to creator or author of the content.
6.  The rights of copyright holder with respect to the computer programme have specifically enumerated with various other rights relating to the other kind of works. Various other rights with respect to the other subject matters (for e.g., ‘right to distribution, performance in public, communication to public’, etc.) are required to be explained well in the context of the digital media. 
7. Chapter VIII of the Act, deals with ‘rights of broadcasting organizations’ and also the performers. This chapter also provides for various rights and insights which the ‘broadcasting organization’ and ‘the performers’ have in respect of broadcast and performances respectively.
8.  The Copyright Act does not provide for ISP (Internet Service provider) liability directly. Though, Section 51 (a) (ii) may be extended to cover the same. The Delhi High Court, in case My Space Inc. v. Super Cassettes Industries Ltd.[9] has elaborated upon the fixation of ISP liability and website owners as:

“Section 51(a)(ii), in its first part states that when anyone permits for the profit at any place for communication of the copyrighted work to public in its domain, he/she would be liable for the infringement. ‘My Space’ owns a ‘website’ where ‘third-party users’ upload and can view the content. In a perception, the appellant is the provider of a place, albeit virtual, to communicate at various kinds of the works. ‘My Space’ does enter into any contract with the users, but for a limited scope or purpose. The contract does not specify any kind of work users would upload. The users are free to upload whatever content they would wish to, without specifically informing to ‘My Space’ about it. It also provides the space freely, and the users choose their content for communicating to the public. What ‘My Space’ does is the insertion of advertisements through an automated processes without going through the content itself. Thus, it cannot be doubted that ‘My Space’ permits a place for a profit as it definitely generates ‘revenue’. Though, Section 51 (a) (ii) may be used in fixation of ‘ISP liability’ yet the ‘infringement of copyright’ in digital forum needs to be specific and also the clear provision fixing liability of ISP as a performance of rights in the digital media is as different in operation as compared to the performance of rights in the analogous of copyright system. The “space” in the basic design of the internet has different connotations and also contours than “space” in the physical sense wherein the control over ongoing activities is much faster and easier. Further, Section 52(1) (b) of the Act grants an immunity to the ISP as an intermediary dealing with the “transient or an incidental storage of work or a performance purely in technical process of the electronic transmission or communication to the public”. Section 52(1) (c) also grants similar immunity, however, with an exception i.e., “the person responsible should be aware or has a reasonable ground for believing that such storage is an infringement of copyright”. In the digital era, such awareness on part of ISP is extremely difficult task, if not impossible task, to prove conclusively. The Technology Protection Measures and Electronic Rights Management Information have been provided for in the Act, however not in much detail. The Act also provides for criminal liability for the circumvention of the technological measures and also tempering with Electronic Rights Management Information. The maintenance of the digital library and the multiple uses of the copyrighted contents by the users of those libraries and on one hand and strict Digital Rights Management on other needs to be addressed thoroughly.”

CONCLUSION

The copyright laws, since its inception, have been always responded to technological developments and taking its place in the society in order to exhibit adequate protection from the infringements. The digital technology, today, poses a ‘myriad threats’ to the copyrighted works, which it has become an imperative not only to the screen, but the copyright in its digital forum but also to sound its existing legal system to guard against all such ill-effects and also fix the liabilities. The operation of the copyright in its digital environment is completely different from the operation in its analogous copyright set-up owing to the technicalities that are involved in numerous activities like ‘reproduction, dissemination, storage’, etc. and then the role-played intermediaries in such activities. In this digital era, where the digital piracy is becoming a common phenomenon, it has also become absolutely necessary, thoroughly revamp the Indian legal system. The analysis of the apprehensive provisions clearly shows the deficiency to address various issues and concerns raised by the modern era technological developments. From the elaboration on rights of the copyright holders in the digital medium to the ISP liability and now with a momentum in ‘robotics, machine learning processes and artificial intelligence’ issues pertaining to non-human author under the copyright regime, which needs to be addressed adequately. The current copyright regime structure in India, which has framed the provisions keeping in focus of the analogous copyright, despite the amendments to incorporate the digital elements by and large which are still using the old regulatory set-up, in order to combat the new challenges which are posed by the technology. Restructuring of the copyright laws, need to keep it in tune with the advancing digital technologies is a need of an hour.[10]

END-NOTES

1 Study on Copyright piracy in India undertaken by the National Productivity Council (NPC) for the department
of education, ministry of human resource development, Government of India.
2 Copyright protection in the digital age: A tripartite balance by Xu Q.
3 Copyright in digital age by Oman R
4 Advanced copyright issues on the internet, available at
https://www.fenwick.com/FenwickDocuments/Advanced_Co pyright_2011_September.pdf
5 Ibid
6 Entitled to copyright protection, available at https://www.natlawreview.com/article/ shenzhen-court-rules-ai-generated-articles-are-entitled-to-copyright-protection.
7 Section 14 of Copyright Act, 1957
8 Amendments to Copyright Act, 1957 through the Copyright Act (Amendment) Act in the years 1983, 1984, 1992, 1994, 1999, 2012 and through the Finance Act, 2017.
9 236(2017) DLT 478
10 Mathur: A reflection upon the digital copyright laws in India.

Author: Naga Lahari, Associate.

Disclaimer: The content of this article is intended to provide a general guide to the subject matter and that the same shall not be treated as legal advice. For any queries, the author can be reached at lahari@samistilegal.in