DIGITAL COPYRIGHT LAW IN INDIA
“We believe in the entity of saying, what’s in our mind, to think what is in our mind & what we want, & to learn whatever we are willing to learn”. Accordingly the ideas cannot be restricted in the mind of the owner itself, but they are to be expressed, valued upon by others, and then to explode in the market places, making it available for all the people who are willing to enhance their knowledge in that idea.
The growth of the internet has been fueled from the past decades of the invention of the printing press, which has connected people to the deep roots of historical information, among the people. With the growth of Technology and more particularly digitization the entire world has always recognized the need for a Digital Copyright Law. Therefore, the existing Copyright law has evolved, as the trend of maintaining records in the form of Digital data clearly requires protection a need felt all round the world. The advancement in technology posed new challenges to the existing copyright laws, as the law was initially developed in the regime of print media that slowly brought under its protective shelter creative works, paintings, drawings, sculptures, which later expanded to photography and cinema as well. These age old legislations and their core concepts in copyright law had to be revisited, so as to make digital societal record progress. The technological copiers or recorders make the digital data easily available, which could lead to exploitation of the work vis a vis a free flow of information in society, as the moment this digital record is placed in public domain on the internet the author losses all control. Therefore, as Copyright law per se grants certain negative rights to its owners to prevent anyone from doing acts pertaining to his work, as the Copyright law has now been modified to suit the new age digitization.
THE LATEST COPYRIGHT (AMENDMENT) ACT 2012
A fair dealing exception, use for education purpose which were earlier applicable only in relation to certain types of work e.g. literary, dramatic and musical works, have been made applicable to all types of work.
A fair dealing exception has been extended to the reporting of current events, including the reporting of a lecture delivered in public. Earlier, the fair dealing exception was limited for (i) private or personal use, including research, and (ii) criticism or review, whether of that work or of any other work. Further, it has been clarified that the storing of any work in any electronic medium for the purposes mentioned in this clause, including the incidental storage of any computer programme which is not an infringing copy, does not constitute infringement. The transient and incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public; The transient and incidental storage of a work or performance 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 reasonable grounds for believing that such storage is of an infringing copy: Provided that if the person responsible for the storage of a copy, on a complaint from which any person has been prevented, he may require such person to produce an order within fourteen days from the competent court for the continued prevention of such storage.
The storing of a work in any medium by electronic means by a non‐commercial public library, for preservation if the library already possesses a non‐digital copy of the work. The making of a three‐dimensional object from a two‐dimensional artistic work, such as a technical drawing, for the purposes of industrial application of any purely functional part of a useful device.
“The Congress shall have the power – to promote the progress of science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings & their discoveries."
The statute of ANNE, enacted by the British parliament in 1710.
Earlier copyrights required various formalities like registration, copyright notice, etc. for the protection of the copyright, but according to today's world trend, copyright protection is automatic as soon as they are in the intangible form. Like I have written the words that you are reading. The copyright will protect the authors from being exploited and converting it into different copies, but no protection will be given to their ideas of facts, thoughts, etc.
Copyright law was established way before for the protection of the work, and even no one would have thought about the concept of digital media, so copyright can be considered as the ancestor property for digital media. However, here the thing, which is to be noticed that the copyright is deemed for the protection of original work on the digital media, just like it, protects the other works.
Copyright in digital media is a fueled sector for the law as day by day new technologies are evolving, it becomes the very first struggle of the lawmakers to keep the rules, terms & regulations updated to get people with access and the way the people are using the path used by the public transmit information online.
Copyright has several justifications –that it is a right and just to reward and recognize creative skill and effort. It provides an incentive to creators and lawmakers to recognize these. Digitalization continues to pose fundamental challenges to copyright which have only been partially addressed by the 2003 regulations, important though the CJEU and limited legislation in this area is arising from recent UK and EU consultations and initiatives, in the UK particular the Hargreaves review.
SCHOOLS OF THOUGHT OF DIGITAL SPHERE-
Legal scholars have highlighted the importance of the essential characteristics of the digital right. This copyright significantly focuses on the range of complete abolishment of copyright to work towards a moderate approach that embraces the public-private balance of rights. This school proposes the abolishment of copyright law that works as it is a step with the current realities.
According to the neo-classical the power is currently in the hand of the copyright owners which should be tempered by the public interests.
The modern approach is considered to be a balanced approach because there is the requirement of neutral approaches becomes necessary. Copyright works can be not to use if they are applied irreverently with the copyright principles.
USA was the first to implement the provisions of the WCT (WIPO Copyright Treaty) and WPPT (WIPO Performances and Phonograms Treaty. It enacted the Digital Millennium Copyright Act 1998 that discussed protection of technological measures by dividing it into two categories being a measure that prevent unauthorized access of data and measures that prevent unauthorized copying. Thus it prohibits circumvention of technological measures controlling access The second limb of the DMCA 1998 was it dealt with the technological measures used by authors to protect their copyright. However, this was severely criticized by the critics who state that this legislation prevented scientific research and academic development; although the DMCA had a good impact in updating copyright law for the digital environment, as it was the first legislation of its kind. . The Digital Economy Act 2010 (c. 24) was enacted by the Parliament of the United Kingdom regulating digital media and was introduced by Lord Mendelssohn; it received Royal Assent on 8 April 2010, and came into force on 8 June 2010. However, the Open Rights Group, privacy and consumer rights organizations criticized the online copyright infringement provisions viz section 3 to 18 of the Act, because it partly had a proposal of a graduated response scheme, which could eventually disconnect Internet accounts used for persistent copyright infringement. The Group took their concerns to the House of Lords and raised issues about the impact on businesses offering Internet access to their customers, such as libraries and universities. Developing countries as they entered the digitization age face a major challenge as they are always dependent on developed countries, as a source of information. Developing countries must be allowed to maintain exemptions for educational and research purposes. It is very important that such works are available for the overall growth of the Country. Thus, providing access is important, although what form of access may depend in part upon the type of institution and its desire to engage in broad, public dissemination.
In India the Copyright Act does not fix a liability on the ISPs for infringement of Digital Copyright. Therefore, as an initiative the Information Technology Act 2000 redressed the issue of fixing liability on the ISPs for infringement. It states that no Service Provider was responsible for an offence committed or for violations happening without his knowledge, if the service provider has exercised all due diligence.
Indian law resembles the provisions of the US Home Recording Act 1992, as section 52 of the Indian copyrights Act 1957 describes the concept of fair use exception. It exempts works done for private use or for criticizing or reviewing of the work. However the major drawback in Indian law is the Indian Copyright Law does not implement the anti circumvention provisions under the WCT and WPPT, as US and UK have done. Therefore, there are no provisions that prohibit circumvention of digital rights management systems in India. Therefore, there is piracy happening benefiting the users, who are getting copyrighted material at half the cost. On the contrary the owners are getting publicity, fame and prosperity vis s vis loosing out on opportunity to sell their original works that would have yielded them good revenue. The only remedy at the moment is to initiate legal action under the Copyright Act to prevent piracy.
By the virtue of "the first sale of Doctrine" – the copyright owner has no right over the distribution of copies and also the buyer is having the right to keep that copy, rent or resale it to others.
Another exception talks about useful articles like the copyright gives the protection to the painting or photograph or the automobile, but it gives no protection to the automobile itself. Like the photographs, virtual displays are used for the classroom, television, and video tapings."
The frame is a bit blurry that where the copyright is going to die- because the interconnectivity of every point in terms of everything comes on the point that how the legislature & courts maintain the equilibrium of free speech and arguments against the measures restricting the availability of content.
But till than following are the futuristic approaches
Much of the efforts have been made for the information society directive indicate that shows the indication towards the power and flexibility as an intellectual property right is in its present existence.
Digitalization may lead the way to new collective ways of administering rights. " micropayments" and other internet technologies could play a part in enabling proper remuneration for right holders . for example, in the UK a digital copyright hub is being established to assist in rights clearance.
Another view of International copyright code is considered as the solution to the harmonization and effective enforcement of copyright in the digital world.
It is important to note that the interests of both developed and developing countries cannot be satisfied in the digital world due to lack of territorial limits. Therefore, it is appropriate to have one single legislation for the entire world being a strong DRM system. Therefore, all content owners across the world would be encouraged to do more business on the internet which would result in more profits because of the wide reach and quality offered by the digital world. This in turn would provide good economic incentives, which would result in an increase in the use and creation of useful arts. Therefore, it would work to have strong laws against circumvention of DRM systems in order to curb piracy to a large extent. In turn to make India sufficient in vital information and knowledge, the government could guarantee supply of content by subsidizing it. On account of the indivisible nature of the Internet having different rules for different countries, based on the development status of the country, works out to be cumbersome. Therefore, in common interests of both developed and developing countries, it would be advantageous for the world as a whole to have a strong legal protection against circumvention of DRM systems thereby encouraging creativity in useful arts, which in turn is beneficial for everyone.
Written By:Ms. Niharika Kalra, 2nd Year Law Student, Punjab University,Law Intern at S. Bhambri & Associates (Advocates)