This article has been written by Anmoldeep Kaur.
Until the advent of the printing press, nobody was much afraid about stealing their work as making copies was so tedious and heavily prone to manual error that only a few copies were made of the books and manuscripts. It was in the fifteenth century when the invention of the printing machine and consequential publication of literary works in multiple copies gave birth to the concept of copyright protection.
Copyrights are the exclusive rights given to the creators and producers of original literary, musical, dramatic or artistic works. Initially, most of the copyright protection laws were based on print media but over the years the horizon of intellectual property has expanded progressively. The evolution of technology has given rise to new concepts like computer programs, computer databases, various other works on the web, etc. which are covered under the concept of digital copyright law.
In the present digital age, the communication of these newer forms of intellectual property takes place through the internet in no time but the same internet has raised a new set of challenges to the copyright regime by increasing the chances of copyright infringement by various advanced means.
This article aims at getting to know about how computer-based works are protected under copyright law and how the international community has responded to the challenges of digital technologies with respect to intellectual properties. It will also discuss how the Indian Copyright law has evolved in this digital era and identify the loopholes in the present framework for the protection of copyrights.
New works in cyberspace
The worldwide advancement of digital technologies has given birth to multiple computer-based works such as computer programs, databases, computer software, and other multimedia works on the internet.
The computers are programmed with a given set of instructions to achieve certain results, these set of instructions are known as programs. The Encyclopedia Britannica defines a computer program as a detailed plan or procedure for solving a problem with a computer; more specifically, an unambiguous ordered sequence of computational instructions necessary to achieve such a solution.
Programs stored in the memory of a computer enable the computer to perform a variety of tasks in sequence or even intermittently. For formulating a task, a computer program is written by the programmer which is known as ‘source code’ and then the computer program is converted into the appropriate computer language (machine language) to be run by the computer which is called ‘object code’. The object code and source code are the two different but equivalent forms of the same computer program. Thus, one who owns the source code also holds the ownership of the object code.
Under the TRIPS Agreement, the computer programs are granted copyright protection in the same manner as any other literary work. In consonance with the same, Indian law covers the copyright protection of computer programs under the Copyright Act, 1957. In 1994, the Act was amended to include computer programs and databases in the definition of literary works. Section 2 of the Act defines computer programs 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”.
Although computer programs fall under the category of literary works, the rights and infringement concerning computer programs are provided under separate provisions of the Act. The rights for the computer program copyright, along with sale and rental rights are given in Section 14(b) of the Act.
An amendment was made in 1999 to the Act which entails that commercial rental rights will not apply in cases when the computer program itself is not the essential object of the rental. Since digital technologies are not being used in a wide spectrum of areas affecting daily life such exception is considered appropriate as, otherwise, one may end up paying for technologies that one had no intention of using in the first place.
The violator of the copyrights can be tried in the court made liable for penalties enlisted in the Copyright Act. These violations include making or distributing illegal copies or use without proper authorization. Taking into consideration the distinctiveness of computer programs from other literary works the law has also made the knowing use of infringing copies of computer programs an offence and has also prescribed minimum punishment for it.
A compilation of works, data and other materials arranged in a systematic and logical method is called a database. The databases are copyright protected as literary works, even if the database is the compilation of non-original works. It is the skill and labour of the author which is considered through the works are non-original. It is the ‘expression’ of how the data and facts are compiled in a specific arrangement to give a certain outlook, which is protected under the copyright.
For a database to qualify as an ‘intellectual creation’ it should have the originality of expression, that the work is not copied from some other database and comes from the intellectual effort of the author.
The Copyright Act, 1957 of India protects databases as literary works. The definition of ‘literary works’ includes computer programs, tables and compilations including computer databases. The databases and computer programs enjoy similar rights with respect to their infringement under the Act. It is pertinent to mention here that the Indian courts recognize copyright in databases.
It has been held that compilation of a list of clients/customers developed by a person by devoting time, money, labour and skill amounts to “literary work” wherein the author has copyright under the Copyright Act. As such if any infringement occurs with respect to databases, the outsourcing parent entity may have recourse under the Copyright Act also.
Under the Indian legal system, the term database was first defined in the Information Technology Act, 2000 in its Section 43 explanation ii as “a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalized manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network”.
Section 43 of the Act provides compensation of Rupees one crore to the aggrieved party from the person who violates the databases’ copyright and other cyberspace norms. The said Section 43 of the Act has a wide scope and covers the cases of cracking the computer codes, computer trespass, digital copying, violation of privacy, data theft etc. The penal liabilities for such cases are enlisted in Section 66 of the I.T. Act.
Multimedia work is the work that involves more than one form of communication. These are combinations of various elements such as text, sound, still visuals and moving images, etc. The multimedia work can be divided into two categories, interactive and non-interactive. Interactive multimedia includes video games and other things which require human interaction to perform.
The Indian Copyright Act of 1957 does not define multimedia work. For these works, its separate elements are registered under separate categories, as the multimedia works as a whole defy the existing classification. Many such works are created by making alterations of the existing ones.
The copying of multimedia works is easy as the new copies are just the same as the original. There is no specific provision in the law for the protection of originality of multimedia works in cyberspace.
Accordingly, these works can be protected as cinematographic films or computer programs. But the issues may arise about the separate copyrights of the works used in the multimedia. The problem will get accentuated when more and more multimedia works will be created as new complex ones. The classification of multimedia works is an issue, which needs to be looked into in-depth.
Challenges to copyright in a digital environment
Digital technologies have brought revolutionary changes in the areas of media, entertainment, communication, advertisements and education. The advanced technologies have made the communication, distribution and reproduction of the works much easier at the hands of a common man. Digitalization has made it considerably easy to make identical copies and transmit it to a population of millions dispersed over distances in a fraction of time.
All of this can be done without making the owners aware of it and eventually exploiting their interests. The internet has become a threat as much it has become a need. There are various issues that have posed threat to the rights of copyright holders.
Copyright and internet
There are plenty of items on the internet that have varying degrees of copyright protection which include images, graphics, news, e-books, videos, etc. Many users have a belief that all information on the internet in the public domain can be copied which is untrue in most cases. The decentralized nature of the Internet makes it possible for any user to disseminate a work endlessly in cyberspace through an endless number of outlets, which make it more difficult to determine whether the work is a duplication or copy of a protected work, thereby giving rise to global piracy. Estimates of global losses from pirated books, music and entertainment software range into billions of dollars.
The Internet in a way presents a troublesome situation for copyright holders as the users become mass disseminators of others copyright material and create disequilibrium between the authors and users.
Cyberspace has made everything so accessible that copyright violations can be made by the user by just making few clicks in the process of copying the data. Following are some actions which cause copyright infringement in cyberspace.
Downloading and uploading
Software and files can be downloaded on the hard disk of a computer through the medium of the internet which is another way, is duplication of the data or work being accessed on the internet. Certain times there are restrictions on downloading a work which if not followed up lead to infringement or even an offence. Copying an audio or video file through companies that are involved in Peer to Peer file sharing (P2P) of any digital music shall also amount to a violation.
When two or programs or databases are combined or used to create a different work, it is known as derivative work. The use of original works in the derivative works without the permission of the author amounts to copyright violation.
Displaying an image online by linking it to the website which originally hosts that image can also lead to copyright violation,
The idea of multimedia is very wide as it has incorporated various elements of text, images, videos, graphics, sounds, illustrations, etc. The multimedia work authors require prior permission for each of the elements used therein. The assortment of the rights of the creators and proprietors is very cumbersome and often results in a conflict. There is a lack of specific law which covers the ambit of multimedia works.
In the present digital age, social media has become a basic means for people to connect all over the world. Social media is a platform for the widespread sharing of pictures, videos and many other materials. Many people have a false notion that everything on social media is free. The activity of re-posting and claiming ownership over a copyright-protected work amounts to copyright violation. Using the content available on social media platforms without acknowledging its author is a problematic issue for content creators on social media
In order to curb these new technological problems, many technical solutions were applied. The access control and copy control was one such measure, which enables the creator to keep a check on illegal use of his work. Watermarking the works available on digital platforms to detect its unauthorized use and prevent illegal exploitation. The blockchain technology which records peer to peer transactions proved a very effective mode to keep the works secure. However, counter techniques were developed to fail these protection measures. The digital domain required some effective legal actions to protect the copyrighted works from hacking.
International developments in the Copyright Law
Countries throughout the world have encouraged the protection of copyright by giving an amicable response to the international treaties from time to time. These treaties lay down minimum standards of protection and in consonance, to them each signatory country inculcates such standards in their domestic laws.
It was in Berne (Switzerland) in the year 1886 that the first step for the protection of copyright was taken when the countries signed the Berne Convention. The Convention aims at protecting the literary and artistic works and the rights of the authors. It determined the minimum standards of protection and worked on three principles, which are the principle of national treatment, the principle of automatic protection and the principle of independence of protection. In order to resolve disputes among the member nations, the International Court of Justice at Hague was established but the Treaty left nations free to declare their immunity from the jurisdiction.
Universal copyright convention
This convention was signed in 1952 and it resolved to provide for the adequate and effective protection of the rights of authors and other copyright proprietors in literary, scientific and artistic works, including writings, musical, dramatic and cinematographic works, and paintings, engravings and sculpture. The term of copyright protection was set up till the lifetime of the author and 25 years after his death. The Convention also expressed that it does not affect the provisions of the Berne Convention in any manner.
The Rome Convention took place in 1961and it expands the ambit of the Berne Convention by securing the rights of performers, producers of sound recording, broadcasters and several others along with protection of literary, artistic and cinematographic works. Presently, the World Intellectual Property Organization is responsible for the administration of the convention jointly with the International Labor Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO).
An Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPs) is arguably the most important and comprehensive international agreement on intellectual property rights. The 1994 Uruguay Round of General Agreement on Tariffs and Trade (“GATT”) produced TRIPs and was administered by the World Trade Organization. The most significant features of TRIPs are: linking of intellectual property rights to trade for the first time in a multilateral intellectual property agreement and requiring member countries to implement and enforce minimum standards of protecting intellectual property rights.
The TRIPS Agreement adopts portions of the Berne, Rome and Paris Conventions in enunciating norms for intellectual property laws. It holds that copyright protection shall extend to expressions and not to ideas, procedures, and method of operation or mathematical concepts as such. Article 9 asks the member countries to follow Articles1-21 of the Berne Convention except for Article 6 bis in respect of which “members shall not have rights or obligations under TRIPs Agreement”. Article 10 talks about computer programs and data compilation protecting them under copyright as literary works.
World Intellectual Property Organization is a self-funding UN agency established in 1967 with 193 member states. It is a global forum for intellectual property services, policy, information and cooperation. WIPO’s activities are of four kinds: registration, promotion of inter-governmental cooperation in the administration of intellectual property rights, specialized program activities and latterly, dispute resolution facilities. In 1996, member countries found it necessary to form a treaty to deal with the protection of copyright evolution of new technology.
WIPO Copyright Treaty, 1996
WIPO Copyright Treaty was adopted by the Diplomatic Conference at Geneva in December 1996 and entered into force in 2002. It is a special agreement under the Berne Convention that works upon the protection of copyright and the rights of authors in a digital environment.
Furthermore, the WCT mentions two subject matters to be protected by copyright:
(i) computer programs, whatever the mode or form of their expression; and
(ii) compilations of data or other material (“databases”), in any form, which, by reason of the selection or arrangement of their contents, constitute intellectual creations.
Unlike TRIPs agreement WCT covers both object code and source code as computer programs. The treaty also recognizes the authors’ right to distribution and rental rights as well as grants broader right to communication to the public (by wire or wireless means). However, it does not authorize the commercial rental when the computer program is not an essential part of the work. This treatment was brought into force in order to secure the copyrighted works in such a rapidly advancing digital age.
WIPO Performances and Phonogram Treaty, 1996
This treaty deals with two kinds of beneficiaries in the digital world, firstly the performers namely actors, singers, musicians etc., secondly producers of phonograms. It also lays down the economic rights of distribution, renting and communication by the performers with the public and for the producers of phonograms the economic rights of reproduction, right of distribution, right of rental and right of making available. The treaty assures protection to the performers and producer of phonograms for a period of at least 50 years.
The treaties also require the member countries to provide two types of technological adjuncts to the rights so that the owners of copyright can protect their rights and get the works licensed by effective use of technology.
The first, known as the “anti-circumvention” provision which tackles the problem of “hacking” and requires countries to provide adequate legal protection and effective remedies against the circumvention of technological measures (such as encryption) used by right holders to protect their rights and the second type of technological adjuncts safeguard the reliability and integrity of the online marketplace by requiring countries to prohibit the deliberate alteration or deletion of electronic “rights management information” means information which accompanies any protected material, and which identifies the work, its creators, performer, or owner, and the terms and conditions for its use.
The WIPO treaties are the most recent international agreements for the protection of copyrights, particularly in the digital environment. Various countries have incorporated the provisions of these treaties into their laws in order to deal with the new technological issues in the digital space and for safeguarding the rights of copyright holders.
Copyright law in India
In India, copyright is protected under the Copyright Act, 1957 and since then several amendments have been made according to the changing needs of society and to ensure the protection of creators’ works. The Amendment Act of 1994 was brought into force as a response to technological changes in the means of communication like broadcasting and telecasting and the emergence of new technology like computer software.
The amendment done in 1999 was for the purpose of making the Act compatible with the standards mentioned in TRIPs agreement with respect to copyright. The main aim of this Act is to protect the works of creators and owners of the copyright from illegal and unauthorized exploitation. Significant new changes were brought into force by the amendment of 2012 so that the Indian copyright law would come in congruence with the WIPO treaties of 1996.
The Copyright Amendment Act, 2012 not only harmonizes with the WIPO Copyright Treaty and WIPO Performance and Phonograms Treaty but also extends its provisions to face the challenges against the protection of copyrights in the age of digitalization. Along with introducing technological protection measures, the amended law ensures that fair use survives in the digital era by providing special fair use provisions.
The amendments have made many author-friendly amendments, special provisions for the disabled, amendments facilitating access to works and other amendments to streamline copyright administration. Section 57 of the Act provides special rights to the author of the work. First, the right to claim ownership and second, the right to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation (“Right Against Distortion”).
The said rights are also called moral rights. Another provision added by the Amendment of 2012 is that these moral rights can be claimed by the legal representatives of the author which were excluded earlier. Section 52, the Copyright Act is enacted in conformity with Article 10 of WCT about the limitations and exceptions.
The Act expressly allowed under Indian law include fair dealing with a literary, dramatic, musical or artistic work (not including a computer program) for the purpose of private and personal use including research, criticism or review, the making of copies or adaptation of a computer program by the lawful possessor of a copy of such computer program, from such copy in order to(1)utilize the computer program for the purposes for which it was supplied; or (2) make back-up copies purely as temporary protection against loss, destruction or damage in order only to utilize the computer program for the purpose for which it was supplied.
Digital Copyright Law: An Emerging Trend
The most recent Copyright (Amendment) Act, 2012 has acquainted the vital changes with the ground plan for copyright insurance in the emerging advanced climate, quickly expressed as under:
- A portion of the exemptions, (for example, reasonable managing, use for education purpose) which were prior appropriate just corresponding to certain types of work (for example artistic, emotional and melodic works), have been made applicable to a wide range of work.
- A fair dealing case as an exception has been stretched out to the detailing of current occasions, including the announcing of an address conveyed in public. Earlier, fair dealing was restricted for private or personal use, including examination, and analysis or review, whether of that work or of some other work. Further, It has been clarified that the putting away of any work in any electronic medium for the purposes referenced in this provision, including the incidental storage of any PC program which isn’t an infringing copy, doesn’t constitute encroachment.
- The transient and accidental storing of a work or performance purely in the specialized cycle of electronic transmission or communication to the public;
- The putting away of a work in any medium by electronic methods by a non‐commercial public library, for safeguarding if the library as of now has a non‐digital duplicate of the work;
- The creation of a three‐dimensional object from a two‐dimensional imaginative work, for example, a specialized drawing, for the reasons of industrial utilization of any simply practical piece of a useful device.
- The variation, multiplication, issue of duplicates or communication to general society of any work in a format, including sign language, specially planned uniquely for the utilization of people experiencing a visual, aural or another handicap that forestalls their pleasure of such works in their typical format.
- The importation of duplicates of any abstract or masterful work, such as labels, organization logos or limited time or logical material, that is absolutely accidental to other lawfully done.
- Providing detailed border measures to strengthen enforcement of rights by making provision to control the import of infringing copies by the Customs Department, disposal of infringing copies and presumption of authorship under civil remedies.
- Technological Protection Measures are provided so that the authors of the work can be protected and anyone who circumvents such measures is liable for penalty under a criminal offence.
- As rights are managed through online contracts in a digital world, unauthorized alteration or deleting of right management information has been made a criminal offence. Section 65B of the Act holds this provision.
Along with the changes given above the copyright law has been reformed in certain other aspects also, such as implementing special provisions for disabled persons, streamlining the process of copyright administration, enhancing the performers’ rights and many other author-friendly changes. It is one of the major breakthroughs by India as it made the amendments to come in consonance with the treaties without even officially ratifying the WIPO mandate. The Indian judiciary has also played a characteristic role in protecting the rights of copyright holders in the digital environment.
In the case of UTV Software Communication Ltd. Vs 1337X.To and Ors., the Delhi High Court held that the infringer of copyright in the digital world is no different than the infringer in the physical world and there is no explanation as to why crime in the physical world is not a crime in the digital world especially when the Copyright Act does not make any such distinction.
The Delhi High Court in a recent case of Disney Enterprises Inc. and Ors. Vs Kim cartoon. to & Ors., made a decision in order to ensure that the original content of the plaintiffs was protected and therefore restrained the Defendants from hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same on their websites through the internet in any manner whatsoever, any cinematograph work, content, program or show in which the Plaintiffs owned copyrights. In another case decided by the Delhi High court in which the defendants were publishing content on their website which was produced by the plaintiff without their permission or license, the court ruled in the favour of the plaintiff by awarding them damages and issuing a permanent injunction against defendants.
The Information Technology Act, 2000 is another legislation that deals with digital copyright infringements. The Act under Section 66 provides for imprisonment up to 3 years and a fine up to 2 Lakh Rupees for the offence of illegal distribution of copyrighted work online.
A rather new measure that the Indian courts have taken to reduce the cases of digital piracy in India is the “john doe” order. John Doe orders require very little information about the accused and his identity is unknown at the time of filing of the petition. The Indian courts are empowered under Order 39, rule 1 and 2 of the Code of Civil Procedure, 1908 to issue an injunction to order ‘john doe’. All the above-mentioned laws and orders help to deal with any sort of threats toward the copyrighted content and protect the interests of authors as well as other right holders, in India.
Conclusions and suggestions
It can be undoubtedly confirmed that technological advancement has encouraged the creators to develop and project their creations more effectively but has also posed a threat to a protected communication and publication of the works. The boundlessness of the internet out-performed the laws.
However, several efforts have been made at both the national and international level to overcome the difficulties planted by the internet and other technological tools against the protection of copyrights in cyberspace. It is certain that the copyright laws do work for protecting copyrighted material and the recent amendments have brought them more on line but there is still a need to overcome some drawbacks.
The present situation calls for close cooperation with international organizations, a society aware of copyright and its laws and an encouraging relation with the judiciary. Here are a few suggestions which can be brought into force to ensure a stronger ambit of copyright protection:
- As the internet has made transmission of works across the borders without the consent of the owner quite effortless, a procedural mechanism for international litigation will be of help to execute already existing substantive provisions. An online licensing system could also work in bringing down data infringement and piracy.
- More clarity can be provided about the jurisdiction in cases of online copyright infringement. The laws are not specific about what will decide the jurisdiction in such cases.
- Ordinary users should be made aware of the know-how of copyright protection and infringement in order to reduce accidental infringements.
- The differences in procedures and laws for copyright infringement in states should be harmonized to develop uniform laws for the issues of cyberspace.
- James T.C., Journal of Intellectual Property Rights, Volume 7, September 2002, page no. 427
- The Copyright Act, 1957, Section 63B
- The Copyright Act, 1957, Section 2 (o)
- Yadav A.K., Copyright in Digital Era, Chapter II, available athttp://www.rmlnlu.ac.in/webj/alok_kumar_yadav.pdf
- Information Technology Act, 2000
- James T.C., Journal of Intellectual Property Rights, Volume 7, September 2002, page no. 429
- Joshi Krishnendra, Copyright in Digital Era, 12 May 2019, available at https://blog.ipleaders.in/copyright-digital-era/
- Article 1, Universal Copyright Convention, 1952
- Rome Convention, available at https://www.wipo.int/treaties/en/ip/rome/
- WIPO Treaties, available at https://www.wipo.int/about-wipo/en/
- Convention Establishing the World Intellectual Property Organization (Stockholm, July 14, 1967)
- Summary of WCT, https://www.wipo.int/treaties/en/ip/wct/summary_wct.html
- Pandey Abhai, Development in Indian IP Law: The Copyright (Amendment) Act 2012, 22 January 2013, available at www.ip-watch.org
- Section 52, the Copyright Act 1957
- The Copyright Act,1957,Section 65A
- HT Media Ltd. and Others vs. www.theworldnews.net and Others, Delhi High Court, MANU/DE/0563/2020 https://www.latestlaws.com/articles/online-piracy-and-copyright-infringement-issues-and-challenges-by-princess-kalyani/
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