This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the infringement of copyright on the internet with the help of various case laws. And also how to combat online copyright infringement in India.
In the digital era, with the advance and development of means of communication and distribution, the internet has become the main battleground for copyright protection. Copyright infringement is one of the main threats in the field of cybersecurity. It goes a long way especially with the evolving technology by content sharing whereby one can use the original established and protected work for one individual benefit. In the past, copyright infringement was difficult as most of the copyright-protected works were offline. However, in the present scenario, the situation is different as humans have developed ways to break the law. The use of content by persons other than the original owner is a crime and against the objective of intellectual property thereby affecting the online society.
What is a copyright
Copyright is a kind of intellectual property governed under the Copyright Act, 1957. It is an automatic right that exists without applying and here the owner has the exclusive right to reproduce, derive copies, change, adapt, display his or her work. The primary objective of the act is to protect the creator of original works of authorship. Section 13 of the Copyright Act, 1957 states that copyright prevails in original literary, dramatic, musical works, artistic works, cinematograph films, and sound recording. Hence, it means that copyright protects the expression of ideas and not the idea as in the case of patents.
Section 14 of the Copyright Act states that the bundle of exclusive rights that are conferred on the owner of the copyright can be exercised only by the virtue of duly licensed and registered as per the Act. The rights available to the owner for the registration of his or her work to become the bonafide owner of the copyright are below-mentioned:
- Right to reproduce the work.
- Right to issue copies of the work.
- Right to perform the work in public.
- Right to make the cinematographic film or sound recording.
- Right to translate the word; and
- Right to adapt or change other works from it.
Infringement of copyright
Infringement of copyright takes place when a copyrighted work is reproduced, distributed, publicly displayed, or uses work without the consent of the rightful copyright owner. The following are the grounds for the owner to establish a copyright infringement by any person are as below-mentioned:
- Ownership of a valid copyright.
- Violation of his or her exclusive rights under the statutory provisions.
As per Section 51 of the Copyright Act, it states the instance when copyright is infringed and it consists of doing an act by one who is not authorized by the owner with the right to do or permit any place for profit for infringement of the copyright. To determine infringement of copyright, the surest test is to look if the spectator, viewer, or reader after having read or seen both the works are of the clear opinion that the subsequent work appears to be a copy of the former work. This test is also known as the observer’s test.
Infringement of copyright on the internet by intermediaries
The copyright act neither defines internet intermediaries nor any special protection except that mentioned under Section 52 of the Copyright Act. Also, it does not distinguish between virtual space and actual physical space. Intermediaries are defined under the Information Technology Act, 2000 (IT Act) that states that any person who on behalf of another person receives, stores, or transfers that record or provides any services concerning that record. It consists of major websites such as google, youtube, Facebook, Twitter, etc.
The leading case on infringement of copyright by intermediaries was discussed in Myspace Inc v. Super Cassettes Industries Ltd (2015), wherein the court set aside the order by the Single Judge in the case of Super Cassettes Industries v. Myspace Inc, (2011). It was Super Cassettes (referred to as the plaintiff) suit to claim permanent injunction against Myspace (referred to as the defendant or the appellant) from infringing and exploiting the intellectual property rights primarily the copyright owned in cinematograph films, sound recordings, literary and musical works and it has claimed damages for such exploitation.
Myspace Inc v. Super Cassettes Industries Ltd. (2015)
Facts of the case
SCIL is a well-known T-series in India, its business comprises recording audio and video cassette production which has led it to become one of India’s largest music companies. On the other hand, Myspace (may be referred to as ‘defendant’ or ‘appellant’) is an Internet Service Provider (ISP) and also claims to be an internet intermediary and operated in the field of social networking and entertainment websites.
- Whether there is a copyright infringement by the intermediaries or not?
- Whether the present court has rightfully analysed the order set by the Single Judge?
- What is the present status of intermediaries in copyright law?
The issue in the case is of secondary infringement and Section 51(a)(ii) of the Copyright Law should be referred which states “permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such communications to the public would be an infringement of copyright”. While referring to the facts and the circumstance of this case in consonance with the provision, the court observed the following below-mentioned points:
- Myspace owns a website wherein third-party users have access to upload and view content. It is a provider of a place and with its virtual platform, it can communicate various kinds of works. It is evident that it is making a profit and generating revenue thereby satisfying the first part of the above provision.
- Considering the second part of the provision which needs to be satisfied to establish if there has been any copyright infringement or not, the court asserted that general awareness is sufficient instead of special knowledge to attribute knowledge. Knowledge in the pragmatic context means someone’s awareness that is a human agency, thus altering the technical side by the use of software would not come under the ambit of knowledge. In the case of copyright laws, Myspace must have specific knowledge of the infringing works provided on its website from the content owner.
- In the absence of any specific knowledge, Myspace cannot remove the content from its website as during this course it may remove the content of an authorised individual’s license. Thus, leading to the violation of the main doctrine of copyright law that is “fair use”.
The court held that there is no direct infringement by Myspace and the finding of the Single Judge of secondary infringement is set aside. The following was concluded:
- Section 79 and 81 of the IT Act and Section 51(a)(ii) of the Copyright Act should be read together.
- Section 51(a)(ii) of the Copyright Act, in the case of internet intermediaries, states actual knowledge and not general awareness. Moreover, to impose a liability on an intermediary condition mentioned under Section 79 of the IT Act should be satisfied.
- In the case of internet intermediaries, relief should be specific and indicate actual content which is infringed by the other.
The situation of online copyright infringement in other jurisdiction
With the growing internet use the concerns about the individual’s right to privacy, reputation, and copyright have grown. Most of the legal system around the globe has been facing the difficulty to cope up with the pace of technology thereby protecting the interest of the holder. The advent of the internet has led to discussion even in the international convention and on the existing agreements framed under the Berne Convention which provides for the protection of literary and artistic works and the Rome Convention which provides for the protection of performers and producers of broadcasting organizations. These conventions and treaties are established to guide framing the domestic legal system towards protecting the copyright of owners thereby keeping balance with the digital economy and also the rights of internet intermediaries.
Case of online copyright infringement in the US
The US Digital Millennium Copyright Act (DMCA) provides for intermediary laws, wherein the US-based companies have to comply with it. It provides a format for the notice and takedown procedure. As per this Act, the copyright owner needs to send notice to the infringer and mention the infringing content on its website, and accordingly, the unauthorized party will take the corrective step to take it down. Under this Act, there is a “red flag” test which states both the subjective and objective elements which need to satisfy if there has been an infringement or not. The facts and circumstances of a reasonable observer would be used based on objective standards to determine an infringement.
In the US Judgment- Viacom v. Youtube (2007) Viacom claimed copyright infringement against Youtube for its works. The Court observed the principle of fair use and volume of data that the intermediaries hold and stated that even if the infringing work in the suit is in a small fraction of works posted by others on the internet service platform, it is not possible to “determine whether the user has been licensed by the owner, or whether its posting is a “fair use” of the material” or if it is the content of the copyright owner license. Hence, the burden is on the owner to identify the infringement. Additionally, it also stated that general knowledge is common and it does not impose a duty on the internet service provider to inspect or search its service platform for infringement.
Further, the US Supreme Court has also observed the case of copyright infringement in the content of software or internet service providers that had a high possibility of infringing use. In MGM Studios Inc v. Grokster (2005), laid down the test to determine the infringement by the software if it shows a clear expression or other positive steps taken to encourage infringement is to be held liable for the acts of infringement by third parties.
Government policy as per the TRIPS
National Intellectual Property Rights Policy, 2016 is adopted by GOI to promote creativity and innovation and recognise the value of Intellectual property rights (IPR) in economic development countries. Objective 1 of the Policy states the awareness of the economic, social, and cultural benefits of IPR by introducing studies in student curriculum to understand the significance of IP rights and how infringement of the IP rights would not only affect the owner but also the economy of the country. This policy defines “pirated copyright goods” in consonance with Article 51 of the TRIPS Agreement which states that “goods which are copies made without the consent of the right holder or person duly authorised by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation”.
The objective of copyright law is to protect the interest of the rightful owner and grant him or her the liberty to publish anything. In a democratic country, the expression of the owner needs to be appreciated, upheld, protected, and given value otherwise the whole essence of democracy will lose its value in the eyes of the public. Hence, with the advent of technology, India needs to strive to adapt its existing laws and implement policy diligently to protect the owner from online copyright infringement. To entrust free flow of speech, opinion, and expression among people in the digital era, it is time to implement strong policy or online copyright protection law.
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