This article is written by Ashwene Vij who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
The technology in India has taken a revolutionary turn in the form of the internet. It has touched all spheres of our lives. It has become the basic element for conducting commercial transactions and is empowering and connecting to its consumers and businesses at all levels. E-Commerce being the center of it has been seen on an upward growth trajectory ever since FDI guidelines supported an 100% automatic route in the marketplace-based business model.
E-Commerce being unprecedented and using a network that uses non-proprietary protocols, safeguarding its creative content and the information made available to the public at large, becomes the top priority of business owners as not only there is risk of theft and duplication but importantly it also signifies protection against unfair competition.
Copyright not only protects databases but also software, website design, creative content such as text, images, audios, videos and graphics. Having Copyright protection in the E- Commerce Industry stipulates monetary penalties against infringers using work without permission. The total coverage of laws with the help of international treaties provides copyright protection in most countries. It lays out some amount of clarity on Copyright ownership in different situations specifically in the E-Commerce Industry. It provides longevity in terms of Copyright protection.
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Copyright Issues faced by E-Commerce Industry
The enterprise creating an E-Commerce Platform should use a licensed technology which has its validity for a long time or should either use proprietary technology. A very basic issue with respect to this industry is copying of one individual’s work by others, held in an electronic format, since the internet is a free place, it becomes accessible to anyone at any time.
The Internet provides a platform for wide distribution and dispersion of Information in a very quick time and within an affordable cost and most importantly the original and duplicated work is not easily identifiable. “The key problem with this formulation, as far as ISPs and intermediaries are concerned, is that both the TCP/IP protocol underlying the Internet, and the technologies which overlay it, rely extensively, if not entirely, on the ability to make copies of information.” Some basic issues faced by the E-Commerce industry is as follows:
A valid contract shall consist of offer and acceptance, consideration, and a capacity to enter into a contract. The terms and conditions associated with an e-commerce platform shall meet with all requisites of a valid contract in compliance and assurance of e-commerce Transaction. However, e-Contracts are basically in the forms of are click-wrap, browse-wrap and shrink-wrap contracts.
- Click Wrap Contracts: The contracting party usually affirms its acceptance by clicking on the ‘I accept’ tab with the scroll box that allows the contracting party to view the terms and conditions.
- Browse Wrap Contracts: Usually, using such browsers or mere use of the site enables the terms binding on the contracting party.
- Shrink Wrap Contract: the terms and conditions can be read by the contracting party after opening the box within which the product or commonly a license is packed. These types of contracts are mostly used and relevant in the E-Commerce Industry.
The Indian Contract Act, 1872 provides no requirement that the contract shall be physically signed and allows for certain contracts to be made in other forms than in writing. However, the main issue arises in the nature of the e-commerce industry is that it is difficult to factually check the age of the person transacting online which then becomes a problem for the e-commerce platforms as entering into a contract with minors is void in nature and this creates further liabilities.
Also, “The Indian Evidence Act, 1872 requires documents to be proved by primary evidence, and the validity of data messages as primary evidence is uncertain.” Unconscionable contracts are existing very much on mostly all e-commerce platforms and they sometimes cannot be valid in nature itself as consideration in the contract or object of the contract is opposed to public policy and the contracting party stands in unequal bargaining position hence, left with no option but to accept the terms and conditions.
A must under Indian Law Fixation?
In the United States of America, as compared to India, Original Works of Authorship must be fixed in a tangible medium of expression for Copyright protection. For example, Spoken words or Live Broadcast will be entitled to Copyright protection only if they are reduced in some tangible form. However, the position of the same under the Indian Copyright Act, 1957 is opposite. The requirement of fixation in India under the Indian Copyright laws is silent apart from some mention of sound recordings, dramatic works, and Cinematograph film. In the region of online communications, many works are stored on Video RAM of the display monitor which is temporary storage and unclear whether this would amount to sufficient storage or fixation under the Indian Copyright laws for entitlement of Copyright protection.
Lack of Safe Harbour Provisions
E-Commerce falls within the ambit of intermediary with respect to Section 2(w) of the Information Technology Act, 2000, (IT ACT) and the Amendment Act (2009) not specifically stating the word E-Commerce but including the words ‘or provides any service with respect to that record‘ thereby enlarging the scope of the term intermediary to be read with exemptions as provided under Section 79 of the IT act. The intermediaries must carry due diligence procedures in order to avail the exemption as per the Information Technology (Intermediaries Guidelines) Rules, 2011, however, they shall be liable for third party actions in the case where intermediary has knowledge or has been notified by the Government or its agency that data, communication links etc are being used for some unlawful activity and not acted upon it.
The intermediary has the option to either use its judgment and deem that content, data, link, etc. are illegal and block the same or take action within 36 hours upon receipt of this knowledge. This caused a lot of speculation as there are no clear rules stating or defining illegal action or appropriate action.
Even with respect to Copyright Act, 1957, e-commerce companies have not received sigh of relief under the amended provisions of Section 52 (1)(b) and Section 52 (1)(c), stating that “transient or incidental storage of works, made in the technical process of electronic transmission or communication to the public shall not constitute an infringement of copyright” and “Section 52 (1)(c) further provides that the transient and incidental storage for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy also shall not constitute an infringement of copyright”.
These sections seem to be acting as safe harbour provisions but “lacks precision with respect to intermediary’s liability and online markets because the safe harbour is further dependent on the intermediaries having reasonable grounds for believing that such storage is not of an infringing copy” since the words transient or incidental storage of works remain unexplained. In other words, limiting itself to Search engines.
The copyright date begins from the date of publication. Hence once information is put up on the site on a certain date, it would amount to publication and copyright protection would begin on such a date. But the important consideration is the place of Publication. If the work is published in India and some other country/s simultaneously, and if such other country has a period of protection which is shorter and less than the period of protection under the Indian Copyright law, then such work may deem to be published under that country and such work may lose copyright protection under the Indian Law if that country fails to grant protection to Indian Copyright thereby India not recognising it.
Meta Tags are keywords used to find a specific site in case the person finds information being unaware of the URL. In this scenario, the internet search engines play a major role for finding information or URL for eg. an e-commerce site as these tags is also used to search some web index pages thereby hitting up searches of other sites before an actual site thereby causing copyright infringement of that word/site and its products and plainly hijacking the reputation and riding upon valuable intellectual property.
As commonly known as Web Scraping, this method is used to pull and import data or information from a website to an output format which is readable by using a computer program or software. Within fraction of seconds, data/information is pulled out irrespective of any size or number of pages thereby causing ambiguity in declaring Copyright owner as Copyright vests in literary work under Section 13(1)(a), read with Section 2(o) of the Copyright Act, 1957, providing that complications falls under the ambit of Literary work, thereby, indirectly including data scraping which is nothing but compilation of information. It is not clear that a content importer becomes a Copyright Holder as this also leads to infringement of Copyrightable or copyrighted content on the website if done without permission.
The internet being a vast place is itself intertwined with IP Laws and has become an indispensable option for the e-commerce industry. Since the output generated through these industries on their websites are huge, they must have control over their content via copyrights and maintain and establish a place for the same which does not tarnish their visibility online. This can be done by conducting IP audits to identify and understand the assets under IP which are relevant to their e-commerce industry. Furthermore, these websites acting as intermediaries can be protected from Copyright infringement by using Creative Commons as a useful resource.
The Correlation between Section 79 and 81 of the Amended IT Act can be interfered with the Indian Copyright Act, 1957, in other words, Section 79 contains a Non-Obstante Clause – stating “Notwithstanding anything contained in any law for the time being in force”, thereby providing protection to liabilities arising in other status with respect to its intermediaries and at the same time, section 81 provides an overriding effect, “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. If nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 or the Patents Act, 1970”.
In other words, the owner’s rights under Copyright Act, 1957 are not unrestricted by any provisions of the IT Act. Accordingly, Section 79 cannot restrict the rights of the copyright owner by saving the liability of the defendants of the infringing acts caused under the provisions of Section 51(a)(ii) of the Act by operation of proviso to Section 81 of the Act as stated in Super Cassettes Industries Ltd. v. Myspace Inc. and another.
The contracts of the e-commerce website shall stipulate all copyrights, related rights and provide warranty regarding non-violation of third-party rights and usage of their website. The owner of the website shall be able to use, make amendments, update information without restrictions at any given time. Another overcoming for the e-commerce websites will be including digital time stamps which shall provide legal evidence that such content existed at a particular time and maintains an upper hand on infringers infringing upon its privacy.
The Copyright Rules, 2013 already provides a notice and takedown procedure granting some protection to intermediaries however, another technique to avoid Copyright Infringement is the usage of Digital Rights Management (DRM) system as provided under Sections 65A and 65B by the Copyright Amendment Act, 2012. DRM is a technology designed to protect digital copyright and to track or copy.
Copyright owners with help of DRM technologies gain better control over their works and allow users to gain access only to which is permitted by copyright owners. DRM typically controls the exploitation of content by mega tagging content with the relevant usage rules prior to the content being encrypted. DRM provides a new level of protection over content-controlled access, controlled use and distribution — throughout its life cycle and is called Persistent Information Protection (PIP). DRM technology secures content, such as HTML, PDF and MP3 files, by creating a digital wrapper.
The E-Commerce industry has come a long way since the internet from initial times and has become a necessity in every household. The Legal system in India is constantly trying to deal with issues arising from the internet by catching up on the rules under the IT act. The actual share profits can be raised by the IP Owners by safeguarding its IP rights in a proper manner since the success of e-commerce industries is mostly dependent on its implementation of its protective guard.
For the e-commerce industries to thrive, they should be aware of its legal regime and possible future issues which could take away their position in the market and must stipulate effective risk management strategies. The Copyright Act, 1957 needs to be stringent and provide statutory remedies for intermediaries in terms of copyright infringement and provide blanket provisions under the laws of fixation, publication, and protection of anti-circumvention devices etc.
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