This article has been written by Divya Bansal pursuing a Diploma in Domestic & International Commercial Arbitration from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

Primitively, no one would have had fear of losing their exclusively created artwork, research papers, writings, books, novels, poems, songs, music notes, designs, drawings, prints and other literary works, as there were fewer or rather no means of duplication. Lots and lots of machinery, money, time and hard work were required if one had to create even a single duplicate copy of any of these. Until the printing press was invented in the fifteenth century, scholars, authors and publishers did not face the issue of their work getting duplicated. The German inventor of the commercial printing press, Johannes Guttenberg, gave the franchise to Rome and Italy, where Christians’ holy book, the Bible, was easily duplicated for the masses to read. This was when Italy opened the concept of copyrights in the world in the 1460s’.

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Since then to now, technology has been growing multi-fold and content creators, publishers, and distributors face the problem of piracy, duplication, and uncensored content being circulated very easily in global markets. For example, many times we have seen that any movie before being officially released on the market can be downloaded through torrent, and now many times the pirated content of movies and games is put on Youtube, which incurs huge losses to the original creator of that content. 

Now the issues related to copyrights are growing, as these days everything is run by computer programming and hacking of such codes, programmes, and languages is much simpler and more cost effective. Many applications are innovatively created with exclusive codes and programmes using various computer languages, and here copyright protection of such materials becomes necessary because the competition is growing at an equal pace between technology and artificial intelligence.

Hence, it becomes important for content creators, artists, programmers, coders, application owners/ publishers to keep their creative and intellectual works protected through copyrights and if such copyrights are infringed, what is the process to be followed to retain their rights. In this article, we will discuss everything from copyrights to infringement of copyrights, laws related to such matters, and what the process is to seek justice in the event of infringement. 

With the advent of the the latest advancements in the digital world and technologies worldwide, the major issue people face is protecting their creative material, whether it is in the form of computer programmes, algorithms, databases, templates, online courses, movies, albums, songs, food recipes, blogs, podcasts, etc. Our ancestors in the fourteenth century never thought that their generations in the twenty-first millennia would have trouble protecting their creative and artistic material, especially when it would get easily prone to duplication. Let us dive more into the problem of dealing with copyright infringement in the present digital era.

What is copyright

According to TRIPS (the Agreement of Trade Related Intellectual Property Rights, which came into force in 1995), copyright is one of the important components of intellectual property rights. The words ‘Copier of words’ were first used to express the meaning of “copyright” in the Oxford English Dictionary. It is used in the context of the original creation in artistic, literary and dramatic works. Though the scope of it is now not limited to these only, with the growth of computer technology and artificial intelligence, copyright has gained importance to protect computer codes, programs and languages. 

In India, “copyright” is governed under the Copyright Act, 1957; that is now the Copyright (Amendment) Act, 2012. Section 14 of the Act states the meaning of copyright as the exclusive rights provided to the owner of the original creation to reproduce, publish, broadcast, and have authority to sell, rent and distribute his creative work. It is a legal right provided for the protection of all kinds of intellectual and creative works like literary work, sound and music recordings, photographs, drama and movie production/ recording, artistic work, sculpting, manuscripts, software, computer programs/ codes, videos, and graphic arts, whether produced offline or online in the age of the internet, but should not be created through artificial intelligence. Copyright comprises multiple rights and is stated as a ‘bundle of rights’.    

In this article, we are looking in depth at the laws relating to copyright with regard to computer software, programmes, and databases. 

Section 2(ffc) of the Copyright Act (Amendment) Act of 1999 defines “computer programme” as a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.

Section 2(o) of the Act says “literary work” includes computer programmes, tables and compilations, including computer databases.

In India, we also have the Information Technology Act of 2000 which governs the laws relating to cyber crimes, tampering with data and a vast array of information technology that also includes digital signatures and digital lockers. Section 2(o) of the Act defines the term “data.” Data is any information, fact, process, knowledge or instruction that is fed to the computer system to make it usable in the best way for the person arranging it. Databases can be in the form of tables, worksheets, graphs, or records that can bring meaningful usage to the user, hence, such a database can be of any company, person or government and needs protection of privacy and is prone to piracy. 

Both the Berne Convention of 1971 and TRIPS 1995 raised the need for copyright protection for computer programmes, including software, codes, and digital things related to the Internet. 

In India, there is no separate expression to protect databases, as it gets more difficult to detect the originality and genuinity of the database yet it is covered under the computer programme head under the Copyrights Act. But in the USA, it is protected by the Digital Millennium Copyright Act and in Europe, legal protection for databases is provided under the European Commission Directive.

In the 21st century, the world has rapidly transformed from the contemporary industrial setup that was brought about by the Industrial Revolution to economies based on information technology and digital platforms, so it’s more appropriate to call it the Digital and Information Age rather than only the Digital Age.

What is copyright infringement

The basic meaning of “infringement” is to illegally reproduce, broadcast, display or use the work of others for which no authority is given by the copyright holder. 

Illustration of what constitutes copyright infringement: A web programmer developed a code as a part of his off-job research work for his latest literary work; but the code was pirated from his laptop during his absence. The same code, word for word, was used by his employer’s company and published as a game on the company-owned application. The employer company infringed on the copyright of the programmer, who is the actual owner of the copyright to that code.

Illustration of what is not copyright infringement: An employee of a software development company made copies of the newly made software to be saved in the company’s vault in case the software was lost from the server due to any technical glitch. As per the company’s internal regulations, it is mandatory for the authorised person to make copies of the software that the company has developed. And this, of course, does not infringe on the copyright of the company’s software.

Sections 51 and 52 of the Copyrights Act, 1957, enlighten us about copyright infringement. Section 51 lists out all those works of copyright that are deemed to be infringed. Section 52 provides a long and detailed list of acts that cannot be counted as infringements of copyrights. 

In the fast-paced internet age, it becomes very easy to infringe on copyrights, as it can be done at a low cost and the quality is also not compromised compared to the original. Moreover, content creators face huge difficulty in dealing with the mechanism to handle the illegal downloads of pirated material in the form of movies, e-books, music, games, databases, etc. This brings huge losses of money, wastage of efforts on elaborated research and development to the right holders of the original content and unethical practices are multiplying for easy money. 

Copyright mechanism for digital platforms in the world

With continuous development in technology, right from the invention of the printing press to the photocopy machine to the scanners to the camera to the world wide web to the  mobile phone applications, it has become very easy, convenient and economical to infringe on the copyrights of the owners of software, codes, programmes, digital media and applications. 

Worldwide, there have been growing concerns over the replication of pirated data and then making it easily downloadable in the public domain. In this section, we will get to know in brief about those mechanisms that exist from the past to the present.

Conventions and treaties in the world

The need for a regulation was felt worldwide as issues of duplication, piracy, unauthorised broadcasting and public presentation started to arise. To deal with copyright issues, many international conventions and treaties happened.

Berne Convention

In 1886, ten European countries met in Bern, Switzerland, to come up with some solutions for the protection of the original literary works of authors and art works of artists. This meeting is well known as the Berne Convention, where copyrights were first called author’s rights and makerights. The countries that are members of this treaty are able to protect their author’s/ content creator’s copyrights from infringements in all member countries. India has been a member since 1928 and the Indian Copyright Act of 1957 has provided some regulations based on the provisions of the Berne Convention.

WIPO

The World Intellectual Property Organisation (WIPO) is a specialised and self-funded agency of the United Nations that got shaped 57 years ago in 1967, having its headquarters in Geneva, Switzerland and currently has 193 members. The motive for forming the WIPO was to protect and promote knowledge of intellectual property across the globe. It regularly holds meetings to discuss new developments in this field, provides protection to its member countries and other international organisations, circulates statistics and data collected from all over the world, helps members create and adopt uniform laws with regards to IPR and hosts forums for the presentation of the latest research papers on policies and regulations. It also provides for a dispute redressal system for its members. India joined the WIPO in 1975 and has signed 16 treaties out of the 26 treaties the WIPO administers.

TRIPS

Due to the lack of a multilateral framework of principles and rules in regards to international trade and to protect the IPR of the trading community worldwide, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), including Trade in Counterfeit Goods came into being under the umbrella of the World Trade Organisation (WTO), which was signed in 1994 in Marrakesh, Morocco has 164 parties to it. To date, it is one of the most cohesive, comprehensive and important agreements on IPR in the world. It covers almost all the dimensions of the IPR but still more emphasis is placed on copyright rights. Member states are required to strictly adhere to the provisions that are mentioned in the agreement.

WCT & WPPT

Maintenance of existing standards and bringing new regulations into the ever growing cyberspace for copyright protection is a tedious process on which WIPO is constantly working. For serious safety measures, these two new treaties—the WIPO Copyright Treaty (WCT) and the WIPO Phonogram and Performance Treaty (WPPT) were introduced to the world. These treaties are famously known as ‘Internet’ treaties as they both collectively provide relief from piracy, duplicacy and rights to the owners in the digital domain.

WCT elaborates on the protection of original literary, artistic, musical, fine art and photographic works and prominently deals with the writing of computer programmes and databases. It provides some special provisions that no other existing treaty provides  with respect to copyrights in the ever-changing and always advancing field of information technology, like giving protection to coders.

WPPT specifically explains the issues faced by musicians, singers, actors, etc. who are there to give their performances offline or online. Producers of phonograms also face the issue of copying their signs and symbols of vocal sounds and musical notes. Though WPPT is for a specific class of people, with the continuous advancement in technology, the work of performers also gets prone to reproducing without any authority. 

India entered into the agreement with WCT and WPPT very late in 2018 after realising the deep need for strict laws to administer the IPR, especially copyright issues with the rapidly transforming technology. Though in India, the law for copyright gives some relief if it is in the interest of education. 

Efforts of India to protect digital copyrights

Unlike in Europe and America, awareness of copyright needs was felt very late in India. The first law that came into proper shape was the Copyright Act of 1957. In that Act, there was much scope for mistakes and it was more of a confusing type. But as and when the world evolved on copyrights with the advancement of technology digitally, India also progressed and stood hand in hand with international laws. 

There have been many amendments to the Copyright Act 1957, to mention some important ones are The Amendment Act of 1994, to introduce protection for computer software and broadcasting & telecasting of advanced communication media; the Amendment Act of 1999, to comply with the TRIPs Agreement, where illegal and unauthorised exploitation was considered so that the original work of creators could be given due protection; and, to create harmony with the “Internet” Treaties of the WIPO, the Copyright Amendment Act of 2012, to be adopted so that the provisions of fair use of digital media and technology can be ensured.

The Copyright Amendment Act of 2012 is the primary legislation governing copyright law in India. However, it is not the only law that deals with copyright issues. The Information Technology Act of 2000 and the Indian Penal Code also contain provisions that are relevant to copyright law.

Information Technology Act, 2000

The Information Technology Act of 2000 (IT Act) is a comprehensive law that governs a wide range of issues related to information technology, including cybercrime. The IT Act contains several provisions that are relevant to copyright law, including:

  • Section 66A: This section makes it an offence to send offensive or defamatory messages through electronic means. This provision has been used to prosecute people who have posted unauthorised copies of copyrighted works online.
  • Section 66B: This section makes it an offence to receive or possess pirated digital content. This provision is intended to deter people from downloading or distributing unauthorised copies of copyrighted works.
  • Section 66C: This section makes it an offence to tamper with or remove copyright protection from digital content. This provision is intended to protect the rights of copyright holders and to prevent the unauthorised distribution of copyrighted works.

Indian Penal Code

The Indian Penal Code (IPC) is a comprehensive law that governs a wide range of offences, including cybercrimes. The IPC contains several provisions that are relevant to copyright law, including:

  • Section 420: This section makes it an offence to cheat or deceive someone. This provision has been used to prosecute people who have sold pirated copies of copyrighted works.
  • Section 465: This section makes it an offence to forge or counterfeit a document. This provision has been used to prosecute people who have produced unauthorised copies of copyrighted works.
  • Section 471: This section makes it an offence to possess stolen property. This provision has been used to prosecute people who have been found in possession of pirated copies of copyrighted works.

The provisions for various types of cybercrimes like hacking, copyright infringement, piracy, etc. are elaborately provided in the Information Technology Act of 2000. 

The Digital Millennium Copyright Act of the USA provides legal directions for the filing of complaints by internet service providers relating to cyber crimes. India has also adopted some part of it in its laws so as to bring more strictness to administering the protection of digital content creators. 

The Copyright Division of the Department of Education, under the Ministry of HRD, announced the Copyright Rules of 2013. The new set of rules included licencing and registration procedures, storage of copies and protection measures from infringements for literary and musical works, including performers and software creators. These were amended in 2016 and then in 2021. The Copyright (Amendment) Rules of 2021 bring more transparency and accountability by introducing better cyber security measures, as with digital advancement, all the ministries have become digitally occupied and all the government reports and data are provided online. In regards to copyrights, the collection of fees for licencing and registration, distribution of royalties, collection of fines, etc. is all done electronically so this provides for more stringent rules.

Copyright infringement notice

A legal letter sent by the copyright owner or authorised entity to the infringer of such copyright to take down the content that has been illegally and without any authority broadcasted, reproduced and downloaded on the public domain of the internet is lawfully known as a copyright infringement notice. It is a cease and desist notice that is not legally binding but after it is issued and the desired action is not taken by the infringer, the suit for injunction can be proceeded with in court. Cease and desist means to prohibit someone from doing any task that is illegal and for which he does not have any authority from the rightful owner of the content.

In this age, social media is the easiest mode where copyright is easily infringed and the owners give direct or third-party warning to take down such content that tampers with the copyrights. 

Steps to be taken to send the copyright infringement notice

It is indeed important to take prompt action when someone comes across the infringement of his/her copyright, so that not much loss in terms of money or fame is done by the infringer. Following are the steps that can be taken to address the issue of copyright infringements:

  1. Knowledge about Infringement- Before proceeding ahead, one must know that his copyrights have been infringed. The copyright holder must present proof that his work is susceptible to theft by any third party or that someone is trying to reproduce his work in order to get famous. He should be aware of what constitutes infringement of his copyrights and what he can do to protect his work.
  2. Knowledge about Infringer- Once the copyright holder is sure that his copyrights are being infringed, he must identify the infringer and his knowledge. It is important to mention in the letter the address of the infringer and if it is through a digital domain, then one can find it easily.
  3. Writing an infringement letter- The ingredients of the infringement notice should be included properly. Essential particulars of the Copyright Infringement Notice are as follows:
    1. Name and address of both parties, i.e., the copyright’s holder and the infringer.
    2. Details of the work that is being protected.
    3. Dates of the formation of such a work and when it was first published.
    4. Registration details, including the date of the copyright of the work.
    5. Specifications of the violation of the copyrights by the infringer. 
    6. Deadline for corrections or to take down the content.
    7. Demand of fine/ compensation for the loss incurred by the copyright holder (optional).
  4. Delivery of the notice to the violating party- The holder of the copyright can send the notice through speed post, telegram, in-person or email to the other party. However, it is important for legal proceedings ahead to keep the proof that the other party has received such notice so it is better to obtain a delivery receipt from speed post or a signed copy of the receipt from the infringer or his authorised person.

Though sending a copyright infringement notice is the first step towards the prohibition of violations of copyright, one must consult legal counsel and proceed with suit in court if the infringer does not take any action within the deadline warned to him.

Landmark case laws

Burlington Home Shopping Pvt. Ltd. vs. Rajnish Chibber & Anr. (1995)

Facts of the case

The case involved a dispute between Burlington Home Shopping Pvt. Ltd. (the plaintiff), a direct-to-home shopping company, and Rajnish Chibber & Anr. (the defendants), a cable operator. The plaintiff alleged that the defendants had infringed on its copyright by retransmitting its programmes without authorization.

Issues involved in the case

The main issues in the case were whether the defendants’ retransmission of the plaintiff’s programmes without authorization constituted copyright infringement and, if so, what remedies were available to the plaintiff.

Judgement of the Court

The Delhi High Court held that the defendants’ retransmission of the plaintiff’s programmes without authorization did constitute copyright infringement. The court found that the defendants had made a copy of the plaintiff’s programmes when they retransmitted them and that they had not obtained a licence from the plaintiff to do so. The court also held that the plaintiff was entitled to injunctions to prevent the defendants from continuing to retransmit its programmes, damages, and an account of the profits the defendants had made from retransmitting their programmes.

The Chancellor, Master and Scholars of The University Of Oxford & Ors. vs. Rameshwari Photocopying Services & Anr. (2016)

Facts of the case

The case involved a dispute between the University of Oxford (the plaintiff) and Rameshwari Photocopying Services & Anr. (the defendants), a photocopying shop. The plaintiff alleged that the defendants had infringed on its copyright by making and distributing photocopies of its copyrighted materials without authorization.

Issues involved in the case

The main issues in the case were whether the defendants’ photocopying of the plaintiff’s copyrighted materials without authorization constituted copyright infringement and, if so, what remedies were available to the plaintiff.

Judgement of the Court

The Delhi High Court held that the defendants’ photocopying of the plaintiff’s copyrighted materials without authorization did constitute copyright infringement. The court found that the defendants had made a copy of the plaintiff’s copyrighted materials when they photocopied them and that they had not obtained a licence from the plaintiff to do so. The court also held that the plaintiff was entitled to injunctions to prevent the defendants from continuing to photocopy its copyrighted materials, damages, and an account of the profits the defendants had made from photocopying its copyrighted materials.

Conclusion

The digital industry is a fast-growing industry taking a new turn where robotics, artificial intelligence are taking over the human load. Due to machine learning, the originality of content is losing its power, so the copyright process is getting tedious. To deal with this difficulty, people dedicated to developing the system for the protection of IPRs must also pace themselves and there should be a common process to be followed and adoption for such protections because globalisation through the internet has made people enter uncharted territory, ideally making the world one big nation. Like WCT’s provisions of Technological Protection Measures (TPMs) and Rights Management Information (RMI), nations and organisations around the world have to come up with more accurate measures to prevent piracy, duplication, unauthorised broadcast, distribution and circulation of copyrighted material. Techniques like digital watermarking, limiting devices to view the content, one time use of CDs, direct installation of software on devices, etc. need to be effectively used by digital content creators and much more such techniques have to be created by IT technicians all over the world. The laws relating to copyright infringements need to be more strict, with increased punishments and fines. Preventive policing should be given priority over punitive policing, yet if infringers don’t stop, then they have to face the consequences too.

References

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