This article on copyright infringement on the internet is written by Salai Varun Isai Azhagan, a qualified Lawyer and an Advocate in the Madras High Court.

INTRODUCTION

Internet is one of man’s profound inventions of the millennium.It can be defined as a global network of interconnected computers and computer networks. The most impeccable quality of internet is that it is accessible with negligible cost and to almost all corners of the earth. Bill Gates, the popular American business magnet and the former CEO of Microsoft, the foremost corporation of computer software commented that while the world is becoming a global village, Internet is its Town Square. Internet is the quickest source of information. You can get anything under the Sun with just one simple click. A journey of a thousand sites begins with a single click. However; the Internet is both a boon and a ban.

Copyright owners often appraise Internet as a curse more than a blessing. The reason being, Internet is the most predominant threat to their exclusive rights. The explanations as to why Internet happens to be the most powerful menace for Copyright users is four-fold;

Firstly, Internet is accessible without considerable impediments by any person at any time.

Secondly, internet provides a platform for wide distribution and dispersion of Information in a very quick time and with affordable cost.

Thirdly, the distribution cost is almost costless.

Finally, the original and the copy are not easily differentiable.

The amelioration of Internet has given rise to several legal disputes with regard to Copyright infringement. Since the infringement takes place in digital networks, the courts find the analysis of such issues with hardship. The infringement does not extent to just information but also includes photos, videos, movies, music, multi-media and audio-visuals. Moreover, the material mentioned cannot just be easily uploaded but also be downloaded with the same quantum of ease.

Copyright, Designs and Patents Act 1988 does not contain the word ‘’internet’’ or ‘’digital’’. Indian Copyright Act, 1957 deals with the protection of computer software. Unfortunately, it does not have any provision to check the piracy of software on Internet. The amendment Act of 2012 also fails to give a definition of ‘’digital work’’ or ‘’internet’’. The void in the enactments has led to the legal issues. However, a ‘’digital product’’ will constitute a bundle of copyrights that is created by an author with an identity according to the principles of copyright law. Section 4 of the Copyright Act 1957 lists out the acts for which Copyright is available. Therefore, the author of any literary, dramatic, artistic or musical work will be qualified under the provision of the Act. All provisions applicable to owner of the acts for which section 14 of the Copyright Act of 1957 shall be applicable to the owner of a ‘digital product’ that constitutes a bundle of Copyrights. Therefore, any infringement of such ’digital work’ or any work on the ‘internet’ shall constitute infringement.

COPYRIGHT INFRINGEMENT ON INTERNET

Infringement of Copyright on the internet has become more prevalent in the contemporary time. As stated earlier, Internet is the biggest threat of Copyright holders due to the characteristics of Internet. The peculiar feature with infringement on the internet is that it is not easy to determine if a work is a ‘copy’ of a protected work an infringement of the original. On the contrary, in a tangible medium such a distinction can be easily determined. Infringement may not always be intentional. It may also be due to ‘ignorance’.

The infringement in Cyberspace shall take place in different avatars namely;

• Framing
• Linking
• Caching
• Public Display of the Right by uploading on the Internet
• Archiving

FRAMING

Framing is the process whereby one website is allowed to incorporate the contents from another independent website into a frame of its own, in which the framing site appears as the original website. In framing, each frame functions independently so that the information downloaded into the frame goes within the frame and does not go into the other frame or overlap onto the frame itself[1]. Thus, the user remains at the framing website and views the contents ignorant of the fact that the content comes from another framed website. Framing can be illustrated in the case of Washington Post Co v Total News Inc.[2]. The defendant, in this case, designed a website that consolidated over 1200 news sources. The plaintiff’s news column appeared on the left side of the website of the defendant but the URL Totalnews.com appeared on the top. When the link of the news was clicked, the plaintiff’s website appeared. The plaintiff therefore alleged infringement of copyright on the internet. However, the parties reached an outside court settlement after it was agreed by the defendant to stop framing practices. In Future Dontics, Inc vs. Applied Anagramics Inc.[3], the plaintiff was granted the exclusive use of telephone number and a service mark of a business. The plaintiff later developed a website to advertise the business. The defendant reproduced the Future Dontic site on a separate frame in the defendant’s website. The Court held that it amounts to an infringement of Copyright.

LINKING

Linking is connecting the user from the original site to a linked site. The user is provided for an access of a website through the original site. The Universal Resource Locator (URL) need not be typed separately. Linking, for research purpose provides ease to the user. Unfortunately, it gives rise to several legal issues. Linking may be of distinctive types such as Surface linking, deep linking and in-line linking.

In surface linking, the original site provides the link of the homepage of another site. In deep linking, the original site offers the link of the ‘inner pages’ of another side which can be accessed by the user without entering the homepage of the linked website.  Thus, there is a stark difference between the two linking. The former case will not lead to infringement of Copyright as it merely provides the location of the linked site whilst the latter will amount to infringement as materials contained are being exposed. In Shetland Times Ltd v Dr Jonathan Wills and Zet News Ltd.[4] , the defendantconstructed hyperlinks on his site, which when selected links the user to the relevant story on Shetland Times. The link had bypassed the home page.  The Court rightly granted an interim injunction for Copyright protection. Lord Hamilton had observed that substantive materials of the plaintiffs could only be obtained by accessing their website through the homepage of the plaintiff’s site. This was a clear case of deep linking. .

In Ticket Master Corporation vs. Microsoft Corporation[5], the defendant provided for specific hyperlinks to specific pages in the Plaintiff’s site. The policies, service information and advertisements in the plaintiff’s website were bypassed due to such hyperlinks and hence a suit was filed.  An out of court settlement was subsequently made and Microsoft sold that entertainment portion of its site to Ticket Master. The decisions of the Courts were not unanimous with the treatment of deep linking. There were judicial cleavages with this regard. In Ticket Master Corp. Vs. Ticket.com.Inc. held the deep linking per se is not prohibited. In this case the plaintiff and defendants were major competitors in selling tickets of all kinds. Both the competitors had their own website operated for selling of tickets to the customers.  When the defendant could not sell specific tickets, it constructed a hyperlink in its website linking the user to the interior pages of the plaintiff’s site from which the user can purchase tickets. The notice clearly stated that the link shall take the user to another company’s site from which tickets could be purchased.  The Court was satisfied that there was intention on part of the defendants to confuse or mislead the public and hence held that it was not an act of infringement.

Inlining is another mode of linking. They are also referred to as img-src links or image source links. Usually an image is the subject matter of Inlining. The image is placed by the inline link in the website that is being viewed by the user from another distant website. Kelly vs. Arriba Soft Corp.[6]is a famous case on Inlining.  The plaintiff was a photographer. The defendant operated a visual search engine. The plaintiff’s photographs were placed into the data base of the defendant without his prior approval. The photos were further converted into thumbnails and cannot be enlarged in the same site. The link made possible for any user of the defendants site to access the images for free of cost. The defendant was sued for infringement of copyright and was asserted that he could not escape his liability for infringement. The defence of that defendant was that he had no element of commerce in his act, he did not advertise or capitalize the photo and the website operated in the nature of a visual search engine. The function of the visual search engine was to provide a thumbnail index. The ‘Fair Use’defence was accepted by the court and ruled in Arriba’s favour. The Courts have stated in few cases that a transformation of copyright work for an entirely different use, such transformation shall not be considered as infringement. In Nunez vs. Caribbean International News Corp.[7], a photograph which was planned to be used for a modelling portfolio was used in a News article and the Court held that such act was not infringement as the purpose of work was transformed for another use. The principle laid down by the Court in this case and the Arriba case is identical. The Courts have rightly distinguished between ‘copying’ and ‘importing’

CACHING

Cache refers to a space of temporary storage. Computers have caches such as disk cache and cache memory. Thus, Caching is the process whereby a material is copied from an original source to the cache. Such material would be available to the user for a temporary period of time[8]. Caching make be executed by three ways; Firstly, copying of document itself which is displayed on the computer screen whilst accessing the web. Secondly, the document that is being displayed are copied and retained along with the documents reviewed by the user in the past. Thirdly, the documents are not stored in a personal computer but on an ISP (Internet Service Provider) or on a website.

PUBLIC DISPLAY OF RIGHT BY POSTING OR UPLOADING

When any work is published in the Internet, there is almost unrestricted viewing. Thus, when a Copyright material is published in the internet without authorization, it becomes a case of infringement. However, the Courts have not provided for any straight jacket formula for arriving at such a conclusion but have delivered mixed responses subject to the facts of each case. In Playboy enterprises Inc v Frena[9], the defendant created a BBS, Bulletin Board Service. The BBS contained infringed materials. The plaintiff sues the defendant alleging infringement. The defendant contended stating that he was unaware of any infringement. However, the US District Court held the defendant liable. Similarly, in the case of Playboy Enterprises Inc vs. Web World Inc[10]. The Court explicitly stated that vicarious copyright infringement arises in a situation where the defendant possessed direct financial interest in the infringed action. Contrastingly, Courts have taken a different course in the case, Religious Tech Ctr vs. Netcom Online Communication Service Inc[11] where it was held that a BBS was not liable for displaying Copyrighted works as it took no role in control of information but acted only as a conduit of information.

ARCHIVING

In case of framing and linking, the materials were hyperlinked or framed from another website creating a conduit between the two in the internet. The materials are not stored or downloaded in the cases mentioned earlier. However, in Archiving, the process entails downloading and storing of the material of another website and incorporating the same.  Even if there does exist a hyperlink, the link shall take the user to another area of the same site where the material of another site has been stored.  Archiving without the permission of the Copyright owner may amount to infringement.

JURISDICTION IN CASE OF COPYRIGHT INFRINGEMENT ON THE INTERNET

Internet can be defined as the network of networks.  In tangible space, the jurisdiction could be easily established. Unfortunately, in case of infringement on the internet, the jurisdiction with regard to Cyber Space poses certain legal issues. In case of infringement of Cyber space, may countries may have jurisdiction. Hardship is thus faced in to decide if the jurisdiction shall be determined on the basis of the origin of material or place of storage of material or placed where the material is displayed. Moreover, even if the jurisdiction is determined the choice of law happens to be another impediment as there might chance that laws relating to infringement of copyright may differ between countries or even be of the nature conflicting to one and another.  The infringer may escape after committing infringement on cyber space as; a) it is difficult to establish whether infringement has be made in the first place as internet is a fast growing with complexities and technical diversifications, b) Even after establishing infringement, the jurisdiction could not be determined in ease, c) Conflict of law may exist and d) Financial viability and feasibility happens to be another obstacle.

POSITION IN AMERICA

To counter the problem of jurisdiction, the Americans were vigilant enough to bring about the concept of ‘Personal Jurisdiction’. It confers the power to the Courts to entertain a suit in particular matter over an individual .It may occur in the nature of general jurisdiction or special jurisdiction.

The ambit of the Personal Jurisdiction was further magnified by the US Supreme Court in the case International Shoe v Washington[12]where the Court propounded the minimum contact test. The Court put forth that if a minimum sufficient contact is established by the defendant and the Forum state, the state shall be permitted to enforce the obligations that would be incurred.

The ‘Three Pronged Test’ was mooted in the case Compu Serve Inc v Patterson[13] where three conditions are required to be fulfilled for the application of the Personal Jurisdiction.

• The defendant must have purposefully acted in the Forma state and have caused a consequence
• The cause of action must have arisen by the defendant’s activity
• Such act must have a substantial connection with the Forum state

Furthermore the ‘Sliding Scale Framework’ was postulated in Zippo Manufacturing Co v Zippo Dot Com, Inc[14]which included three distinguished activity on the scale, 1) Business category 2) interactive category 3) passive website technology. Exercise of jurisdiction in the first category is proper; the exercise of jurisdiction in the second category is subject to the level of interactivity and in the third category, the exercise of jurisdiction shall not be proper.

JURISDICTION UNDER THE COPYRIGHT ACT 1957

Section 62 of the Act stipulates an additional forum of jurisdiction to seek redressal for an injury caused.  The statute states that the person instituting the suit can institute the same at the place where he ‘voluntarily resides or carries on business or personally works for gain’. The wrongdoer is compelled to the forum of the choice of the plaintiff.

The Delhi Court in Yahoo! Inc v Akash Arora[15] held that the cause of action could be established by something more than mere accessibility. In this case, the plaintiffs have done business and have interacted within the local limits of the state and hence the scope of jurisdiction can be enhanced.

In matters relating to the infringement on the Internet, the defendant is said to have established minimum contact ifhe carries on business in India by subscribing Indian Net users. If a suit is decreed against an Indian in a foreign court for infringement on the internet, the same can be enforced in accordance to section 13 of the Civil Procedure Code 1908. In case of infringement by a foreign national, the Courts must exercise extraordinary care with regard to unresolved jurisdictional issues.

The WIPO Performances and Phonograms Treaty (WPPT), WIPO Copyright Treaty (WCT) and the Berne Convention are also silent with respect to uniform practise to exercise jurisdiction.

CONCLUSION

Therefore, Internet is more a curse than a blessing to the Copyright owners. There are several modes of infringement occurring on the cyber space proving of which itself is difficult. The infringement or alleged infringement takes form of framing, linking, caching, archiving and other different ways. The treatment is not uniform but varies according to the facts and circumstances of such acts. Internet and technological advancements relating to internet are progressing at jet speed. The law and the Courts ought to catch up with the pace of such developments for efficient adjudication. Despite establishing infringement, the plight of the Copyright owners is not uplifted as there are other several legal issues obstructing quick adjudication. The issue of jurisdiction and the choice of law add more obscurity to the cases. The US Courts however, have gone a step further in propounding the ‘Personal Jurisdiction’.Therefore, the void in law relating to copyright infringement ought to be filled.

• Salai Varun Isai Azhagan, Advocate, High Court of Judicature at Madras

[1]Microsoft Press Computer Dictionary, third edn, p 207

[2]Washington Post Co v Total News Inc, No. 97 Civ 1190 (PKL) (SDNY 1997)

[3]Future Dontics, Inc vs. Applied Anagramics Inc. , Case No. CV-97-6991 ABC

[4]Shetland Times Ltd v Dr Jonathan Wills and Zet News Ltd ,(1997) FSR 604, 1997 SLT 669

[5] Ticket Master Corporation vs. Microsoft Corporation,  (97-3055(DDP) C.D. Cal. 1997)

[6]Kelly vs. Arriba Soft Corp. , No. SA CV 99-560 GLT (JW 1999) US District LEXIS 19304

[7]Nunez vs. Caribbean International News Corp. , 235 F. 3d 18 (1^st Circuit 2000)

[8]Pankaj Jain and                 Pandey Sangeet Rai, Copyright and Trademark Laws Realting to Computers, Eastern Book Co, 2005, p 278

[9]Playboy enterprises Inc v Frena, 839 F Supp 1552 (MD Fla 1993)

[10]Playboy Enterprises Inc vs. Web World Inc. ,986 F Supp 1171 (ND tax 1997)

[11]Religious Tech Ctr vs. Netcom Online Communication Service Inc, 907 F Supp 1361. 1372-73 (ND Cali 1995)

[12]International Shoe v Washington, 326 US 310 (1945)

[13]Compu Serve Inc v Patterson,89 F 3d 1257 (6^th Cir 1996)

[14]Zippo Manufacturing Co v Zippo Dot Com Inc. ,952 F Supp 1119 (WD pa 1997)

[15]Yahoo! Inc v Akash Arora, (199) 19 PTC 210 (Del.)