This article is written by Kunal Saini, a student of Christ University, Bangalore.

Introduction 

The advent of Information Technology has opened the floodgates for the boom of E-commerce and online business platforms. The paradigm shift to the so called “Touchscreen Age” has enshrined the knowledge of multimedia, software, trademarks and icons owing to the multitude of advantages which the IT offers in terms of convenience, quickness and the spontaneity. Albeit, through this platform also has given rise to complex copyright infringement and unauthorised use of the Intellectual Property rights of persons owing content in the form of music, films, digital art works and software. Some of the common examples being the piracy of music, deep linking and other digital copyright infringements have added to the drawbacks of the boom of Information Technology. 

Key Definitions 

At the outset it is pertinent to note certain key definitions pertaining to the broader aspect of copyright issues in the cyberspace which are:

1. Inclusive Meaning of Copyright: Since the information stored in cyberspace is stored in the form of the computer source, Section 2(o) of the Copyright Act 1957 defines literary work which includes computer programmes, tables and compilations including computer databases. Post the 1993 amendment the definition was broadened in order to cater to the rights of the authors on the internet. As per Section 14(1) of the Copyright Act 1957, it states that copyright will also include the act of reproducing the work in any material form including the storing of it in any medium by electronic means. Subsequently with the inclusion of reproducing work though any electronic means provide the authors using the online platform with certain rights of economic enjoyment and exploitation over the work. 
2. Cyberspace: This term has received multitude of definitions over the years ranging from general to specific definitions. Cyberspace at one hand in a brief manner has been defined as the virtual world or the non-physical place created by computer networks where people can interact effectively. Whereas on the other hand the same term has been coined as a global network which reunited IT infrastructure, telecommunications and computer processing systems to facilitate individuals with a complete social cyber experience characterised by interconnectivity, ideas exchange and sharing of information. 

Copyright Infringements in Cyberspace 

Piracy 

Internet usage has grown exponentially over the years and especially post the Reliance Jio period which has sought to offer mobile internet and modem router services to the populace of the second largest country of the world. Subsequently internet users can easily extract documents and materials available on the internet and use it in an unauthorised manner by further reproducing the same content with minor modifications. Piracy over the internet is posing a serious threat to the creativity of works worldwide and the growth of internet, e-commerce and global economy. The Copyright Act, 1957 doesn’t explicitly cover the ambit of piracy but the same can be considered as a copyright infringement through multiple adjudications of foreign and Indian courts which will be punished in accordance to Section 51 of the act and section 65 A and 65B of the act which deal with Digital Rights Management affording a safety net to the rights of the authors on the cyberspace which will be discussed in detail in the latter part of this article. The entertainment industry is the one which is most affected by this particular infringement as pirated movies and videos are easily available on third-party websites and internet portals concurrently when the movies are released in cinemas.On similar lines one of the recent examples of the same is the copyright infringement complaint filed by the producers of UDTA PUNJAB in Bandra Cyber Cell, Mumbai as the movie was leaked two days before the release on various online portals.

One of the landmark adjudications on the same is the Playboy Enterprise, Inc V. FrernaIn this case the defendant named George Frena was operating a computer bulletin board which was uploading photographs copyrighted by the plaintiff, Playboy Entertainment Inc. These high-quality images were stored on the subscriber’s home computer from the computer bulletin board, which was considered to be direct reproduction of high-quality images essentially copyrighted by the plaintiff. The court held that Playboy Entertainment Inc’s right to distribute copies of the copyrighted work was infringed by the defendants including the exclusive rights to sell, give away, rent or lend any material embodiment of his work.

In another landmark adjudication by the United States Courts in the case of Feist publication v/s Rural Telephone Service Co., it was held that in terms of modification from an extracted content from the internet there must be a minimal degree of creativity and what should be protected by copyright is the intellectual labour. 

Deep Linking and Surface Linking

The former is a concept in which a particular website is linked with another website, whereas the latter pertains to transferring one person from one website to the homepage of the linked site. 

In the famous adjudication of Ticketmaster Corp., et al. v. Tickets.Com, Inc., which acted as one of the initial cases related to deep linking in the United States. In this case the defendants and plaintiff both were into the business of providing information about sporting events, Tickets.Com was providing the link of Ticketmaster for the sale of tickets of certain sporting events. The Court had held negatively stating that the practice of deep linking was not violated. 

Judicial Approach in dealing with Copyright Infringements 

Amidst the multitude number of judicial decisions, one of the most cited cases is the Napster Case in which the defendants sued the plaintiff for P2P sharing of media files (MP3) by Shawn Fanning who used to share the files stored in his personal computer. The United States Court of Appeals had held that Napster could be held liable for copyright infringement and rejected the contention of the plaintiff that the behaviour must be considered as fair dealing.

One of the landmark judgements in India related to copyrights infringements is the Gramaphone Company of India vs Super Cassette Industries in which it was held that the defendant had infringed the copyright of the plaintiff in sound recordings which resulted due to the defendants selling the remix of an old song as a mobile tune. On similar lines in the case of Super Cassettes Ltd v Yahoo Inc and Anr in which the Delhi High Court had issued a notice to Yahoo Inc for infringing the copyright of the plaintiffs by streaming one of its videos on the Yahoo.com portal. 

In another case before the Delhi High Court in Eastern Book Company Limited v D. B Modak, the appellant was engaged in the business of publishing judgments with necessary case notes and headnotes through its publication reporter called ‘Supreme Court Cases’. The appellant contended that the respondent were scanning, copying and reproducing portions of the publication through a software called ‘Grand Jurix’ which constituted infringement under Section 51 of the Copyright Act 1957. In the final adjudication of this matter before the division bench of the High Court, it held that respondents were allowed to sell their software but without the headnotes, footnotes and case notes drafted by the appellants which involved intensive labour and skill of the appellants, but the appellants will not own the judgments. 

In the case of Microsoft Corporation v Yogesh PopatThe Delhi High Court held in the favour of Microsoft Corporation and granted them compensation of Rs 23.62 lacs against M/s Crompton Computers Private Ltd and its directors for illegally selling pirated Microsoft software in the computer machines which was assembled by the defendants. 

In another landmark judgment by the Delhi High Court was passed in the case of Taj Television Limited v Rajan Manda, at the outset it is important to delve into the aspect of John Doe orders before proceeding with the case. John Doe orders are passed in order to safeguard situations in which the person poses a threat to a given task or work, then the legal remedy in such situations is the passing of John Doe orders. In the present case the Delhi High Court had passed John Doe orders in order to restrain the cable operators from unauthorised broadcasting of a World Cup Tournament. 

Digital Rights Management as an Emerging Trend 

In order to safeguard the rights and interests of the authors online, there are certain technologies which control the use, modification and distribution of copyrighted works which is known as Digital Rights Management. It is pertinent to mention that in this domain the World Intellectual Property Organisation has acted as a pioneer and the two treaties of the WIPO, World Copyright Treaty 1996 and WIPO Performances and Phonograms Treaty 1996 both cover the quintessential aspects of anti-circumvention and digital rights management. These two treaties provide digital rights to the copyright owners including both the moral and economic rights associated with the copyright on digital platforms. Although India is not a signatory to both these treaties but post the 2012 amendment to the Copyright Act 1957 two sections have been inserted into the act namely, Section 65A dealing with Protection of Technological Measures and Section 65B dealing with protection of Rights Management information.

The principle of anti-circumvention is applied under the former, if any person circumvents any technological measure applied for the purpose of protecting any rights conferred under the act will attract punishment in terms of imprisonment which may extend to two years along with fine. The latter extensively deals with the removal, alteration, distribution or broadcasting of any copyrighted work to the public will attract punishment in terms of two years imprisonment and fine. Both the provisions are inculcated as penal provisions in order to protect the works of the author and subsequently making circumvention of the same punishable. 

Fair Dealing as a Defence

Fair dealing acts as a well-established defence for copyright infringement and the mandate of the same is covered under Section 52 of the Copyright Act 1957 providing an exhaustive list of acts which does not amount to copyright infringements. In a nutshell, fair dealing with any work for the purposes of private or personal use, including research, criticism, review of the work, reporting of current affairs or events including public lecture will not amount to infringement of work.

An important insertion of provision under fair dealing is the insertion of Section 52(1)(b) dealing with any transient or incidental storage carried out by any internet service provider in purely technical sense, further providing transient or incidental storage to access to electronic links, access or integration of such links if the author has not expressly prohibited by the author will fall under the category of fair dealing itself. 

Amidst the landmark foreign cases (Hubbard v Vsoper and Gyles v Wilcox) on this subject area, one Indian Court adjudication stands out and deserves recognition, in the case of Civic Chandran vs Ammini Amma it was held by the court that parody doesn’t constitute copyright infringement as long as the copyright is not misused or misrepresented. In furtherance of the same the court laid down three tests which determine if there is any copyright infringement or not which are:

1. “the quantum and value of the matter taken in relation to the comments or criticism; 
2. the purpose for which it is taken; and 
3. the likelihood of competition between the two works.”

The Road Ahead for the Indian Scenario

Determination of liability is crucial in enforcing strict compliance over the copyright infringements especially in governing the ever changing and dynamic nature of the Internet which makes such infringements easier to be carried out. It is also pertinent to note that the International Treaties also provide the necessary guidance to the rights management towards copyrights owner which should be considered by the Indian Courts, albeit the 2012 amendment has sought to remedy the mischief by introducing Section 65A and 65B which has further strengthened the statutory protection to the authors of copyrights. In lieu of the judicial activism carried out by the United states in dealing with such copyright infringements, India still needs to pick up the pace and further safeguard the interests and rights of the authors. On a concluding note to say that the conscience of the people will be the deciding factor to determine copyright infringements and what people will perceive as fair use or copyright infringement, it is important at this concluding juncture to quote John Perry Barlow, ‘‘a social over-reliance on protection by barricades rather than conscience will eventually wither the latter by turning intrusion and theft into a sport, rather than a crime.’’

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