This article is written by Prerna Bairwa, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
Table of Contents
Introduction
The Internet is mankind’s one of the greatest inventions that has become both a boon or bane to every individual. Cambridge Dictionary defines the Internet as “the large system of connected computers around the world that allows people to share information and communicate with each other”. In simpler words, the internet allows you to share, watch and get anything under the sun with just one simple click. We are all familiar with the ease and access that the internet gifted us and how bad the internet is through our parents. In this article, however, I will address the curse the Internet is for Copyright owners and how you can protect your work on the internet. The internet can be the curse for copyright owners for a few reasons. The four major reasons are; Firstly, the Internet is available to any person at any time without considerable impediments. Secondly, the price of circulation is almost costless. Thirdly, the Internet gives a platform for distribution at a wide level of information in little to no time and at a very reasonable cost, and lastly, it is not easy to differentiate between the original and the copy on the internet. Let’s discuss the issue of copyright in cyberspace in detail.
What works come within cyberspace
Copyright Act, 1957 does not define ‘Internet’ or ‘cyberspace’ or ‘digital work’. The amendment of 2012 also fails to give any definition to the above mentioned. However, it can be presumed from the lack of specific definition in the legislation, that the ‘digital work’ will constitute a bundle of copyrights that are created by the author with an identity as per the Copyright Act, 1954. Section 4 provides for the kinds of works that are copyrightable and protected by the law. As per India Copyright Act, 1957 Copyright subsist in, namely:
- a literary, dramatic, musical or artistic work;
- a cinematograph film;
- a sound recording.
Literary works include computer programs, tables, and compilation including computer databases.
Dramatic work means any piece of recitation, choreographic work or entertainment in show, or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film.
Musical work means a work consisting of music and including any graphical notation of such work but does not include any words or actions intended to be sung, spoken or performed with the music.
Artistic work means a painting, sculpture, drawing, engraving, photograph, work of architecture and any work of artistic craftsmanship. However, copyright in work of architecture does not include the method of construction.
Cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films and,
Sound recording means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.
And all the provisions applicable to the rights and protection of the above-mentioned work would be applicable to the owner also in cyberspace.
How to protect your work
Now, the question arises how will you protect your work from copying. Suppose A is an animator who creates original content and posts it on their blog, website, or social media and someone steals their work without due credit or presents it as their own. As we discussed above if your work comes under Section 4 of the Copyright Act, 1954 it will get the protection at every medium. In this case, if A posts their work on a site in which ownership of the contents posted vest with the platform and A agrees with such terms and condition, she will lose the ownership and can’t claim any protection. But if, A posts her work on a content neutral platform which does not claim the ownerships. A would have the right to civil and criminal remedies under the Copyright Act, 1954.
(1) Civil Remedies
According to section 55 (1) of Copyright Act, 1957 the copyright owner will be entitled to injunction (an official order from the court to do or not to do something), damages, accounts in the case of infringement of the copyright. However, if the defendant (someone who infringes) evidence in the court that he was not during the moment of such infringement is mindful and has no reason to believe that there is a copyright in the work, the original owner of the copyright will only be entitled to injunction. In case, A can stop the person from copying her work either through a notice of opposition or approach the court to restrain the use of her work and receive the damages.
(2) Criminal Remedies
The owner of the copyright with civil suit, can also put a criminal case against the infringer of the copyright. As per the section 63 of the Copyright Act, 1957 any person who infringes the copyright of someone shall be penalized with an imprisonment of a term which shall not be less than 6 months but can be extended to 3 years and fine which shall not be less than 50 thousand but can be extended to 2 lacs.
There’s an exception under which you cannot sue the other person for copying your work. It’s called ‘Fair Use’. Work used to comment upon, criticize, educational purpose, parody etc. are some of the fair uses. Thus, if the person was using A’s work to critique or for educational purposes she cannot file for infringement on the account of doctrine of fair use.
Intermediary liability
Intermediary liability is the liability/legal responsibility of the intermediary like YouTube, Instagram. The Information Technology Act, 2002 elucidate the term intermediary under section 2(w) as “Intermediary” with reference to any kind of electronic message means any person who on behalf of someone else receives, stores or transmits that message or provides any service with reference to that message.”
In the year of 2012, there was an amendment in the Copyright Act, 1957. According to the amendment, Section 52 places down a number of situations where copyright infringement was exempted. Section 52(1)(c) also dealt with intermediary liability and positions that such intermediaries are not accountable unless they have reasons to believe that such storage would amount to copyright infringement. The court and law on the intermediary liability is ambiguous and only the time will tell if you can put Instagram liable for someone stealing your work.
Cases
Gramophone Company of India vs. Super Cassette Industries Ltd, one of the landmark cases where the court took the position that plaintiff had infringed the plaintiff’s copyright in sound recording by selling the remix version of the song on the internet. The court apprehended that the right of a copyright holder to offer for sale, sell, hire or distribute is not abridged by the arrangement in which it may be sold on the internet.
One of another landmark case on digital infringement is Napster Case, whereby the plaintiff was prosecuted by the defendants for sharing the P2P file. In the following case, Napster provided software through which the user can share media files kept in his computer to another person using them.
Microsoft Corporation v. Yogesh Popat, the Delhi High Court bestowed with a copyright infringement case and granted damages f Rs 23.62 lacs to Microsoft Corporation against M/s Compton Computers Private ltd and its directors for adding the pirated software of Microsoft in computers the company traded after putting together the parts.
Conclusion
The answer to the first question is YES, cyberspace can be copyright protected. You will get the same protection on the internet the way you get elsewhere. The difficult part is evidence. People are anonymous on the Internet and it gets difficult to find who copied your work and in countries like India where intermediary liability is not much. Internet and technological progressions relating to the internet are progressing at speed. The law and the Courts must catch up with the pace of such developments for fast settlement. Despite establishing infringement, the dilemma of the Copyright owners is not hoisted as there are other several legal issues blocking quick adjudication. The issue of jurisdiction and evidence add more obscurity to the cases. Times however are changing. Cases like Dainik Jagran v. Telegram or M/s Shri Krishna International etc. v. Google India Pvt. Ltd. and others are examples of such changes where rights of the owner of the copyrights were protected by the court. Even at the international level, there is a need to ensure that the provisions and principles enriched under International treaties and conventions have been obeyed with so as to safeguard operative administration for protection of copyright in the digital world.
References
- Copyright and Cyberspace: Software and Digital Piracy, https://www.mondaq.com/india/copyright/799368/copyright-and-cyberspace-software-and-digital-piracy
- Protecting copyright in the cyberspace, https://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html#:~:text=With%20the%20passage%2 0o f%20 t h e , to%20copyright%20with%20much%20lucidity
- Intermediary Liability Under Indian Copyright Law: A New Take, https://www.mondaq.com/india/copyright/884070/intermediary-liability-under-indian-copyright-law-a-new-take
- Copyright Protection of Online Content, https://www.mondaq.com/india/copyright/607438/copyright-protection-of-online-content
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