This article has been authored by Nikita Pandit, a LL.M. student at Amity Law School, Mumbai.
Any artist, book writer, blogger, photographer, music composer or movie maker needs to protect the work that they do. It is also necessary how much of their work can be used by another person legitimately for copying, distributing, quoting or criticizing so that their rights are protected. Copyright refer to the rights of the creators given by the law for these literary and artistic works.
Copyrights in India are governed by the Copyrights Act of 1957. It is a bundle of rights consisting of economic rights and moral rights. Economic rights can be transferred and moral rights remain with the creators and after that their legal representatives. In 2013, Copyright Rules were passed for Copyright licenses, copyright societies and even relinquishment of Copyrights. These copyrights can be protected by enforcing in case of violations by going to the courts, civil and criminal.
With rise in the users of Facebook, Instagram, YouTube and other applications, the rights provided by the copyright law to the artists have been compromised to a great extent. Our copyright law being an old one did not anticipate the technological developments of the digital age. The amendments in the legislation have tried to incorporate various aspects of technology but do not cover all the heads. Due to this reason it becomes very difficult for the copyright law to handle the issues arising out of the violations of copyrights concerning the use of technology.
Digital Era and Threats to Copyright
Any law is expected to deal with the challenges put forward by the changing social conditions. New kinds of artistic and creative works have emerged in digital form. Information producers, service providers and other intermediaries also play an active role in transmission of information on digital platform. Not only in the creative world but in the business world too there is great intervention by technological development.
Some of the major issues faced by the internet content in copyrights are as follows:
1· The videos that are available online can be copied without the quality of the video getting downgraded.
2· Illegal downloading of songs and movies on online platforms.
3· Fake websites for e-commerce, marketing and selling by copying the content of the original copyright owner.
4· Easy converting and sending the copyrighted material without the consent of the owner of the copyright.
5· Availability of pirated software such as Microsoft, Adobe, etc. in the market at very low cost without license creating heavy losses to the original owner of copyright. IT industry accounts to 55% of share in economy of India and the use of pirated software causes huge losses to this industry.
6· Pirated movie and music CDs available in the shops at very low cost.
Copyrights in India are protected by the Indian Copyrights Act of 1957. In 1994, copyrights were extended to broadcasting and telecasting on television and radio platforms owing to the development in technology. In 1994, this statute was made fully compatible with the TRIPS Agreement.
Section 57of the Act provides authors with certain rights to claim their own authorships over their work and pose restrictions on unlawful use or seek damages if someone changes, distorts, modifies or mutilates their work even after assigning it to someone else if such work harms the reputation of the authors.
Section 52A of the Act makes the particulars mandatory to be mentioned on sound recordings and video recordings such as name and address of person who made the work or who has the copyright along with the date when it was published.
Legal Perspective of United States
In India, there is no other law for protecting digital copyright but USA has a separate law called the Digital Millennium Act of Copyrights. Section 104 of the Act provides for maintaining the Register of copyrights so as it becomes convenient to access the information regarding the already existing copyrights and to judge the fact of novelty. DMCA also provides copyright owner with a right to send notice to the infringer to take down the content. In the case of Feist Publication v. Rural Telephone Service, the US Supreme Court held that databases that perform the function of selecting and arranging information can amount to originality of work and the database can be copyrighted.
Digital Rights Management
The World Intellectual Property Organizationhas provided some ways to prevent the users of internet from using the content illegally such as:
The software can be safeguarded using cryptography. It swaps the words to create a code using a complex formula. Customer has to pay a fee and then he gets access to the information using the key.
The author can tag the work with a label that his work can be copied and used for non-commercial private use only. Author’s website must contain the declaration that he has a copyright with respect to his work. He should also give the terms and conditions which are required to fulfilled if someone wishes to use his work.
3. Identifier of the Digital Object (DOI)
There should be a mechanism that shows the indication that certain content has a copyright. DOI provide the information and the source. This information and source can change as the time passes but the indication of copyright will stay with the original work.
4. Time Stamp of work
It tags a work with a time and in what condition it was when it was stamped originally. When the work was created by the author, when he made the changes, when he emailed, when he signed a contract with assignee or licensee is labelled. It becomes easier to prove infringement when there is a time tag on the work.
Watermark is a mark which is embedded in the copyright work. It can be visible or invisible. Visible work is considered as an indication or a warning of copyright and invisible mark is a mark pasted on the page of the print and is only visible in certain positions or after processing them.
6. Conditional Access
Only certain rights are given to the users as per their status where they can only read or only sign or only change it and no other rights.
7. Low Quality versions
The information given on websites must contain low quality images and very little information, enough to convey to the viewer whether such information is usable by him or not. If it is of his use, he has to subscribe or pay for that product for accessing it.
Case Laws in India
Super Cassettes v. Prime Cable Network
Plaintiff had a business of production and marketing of cassettes and CDs and also production and distribution of films. Defendant was a big cable network company of Uttarakhand. Plaintiff was the copyright holder of several films and songs in Hindi and other regional languages. They used to give this content on licenses to various TV channels and radios. Plaintiffs contended that Defendant had communicated the work of the Plaintiff to the public by broadcasting the songs and the lyrics and audio-visual representation on its cable network without any authorization from the Plaintiff. Plaintiff had sent several notices to the Defendant to acquire the licenses for the same. The Plaintiffs did the investigation on their part and recorded the content being shown on their channel which was produced as evidence in the court. Court gave the permanent injunction against the defendants and also ordered damages to plaintiffs.
Disney Enterprises v. Kim Cartoon and Others
Disney Enterprises were incorporated in various regions of USA and involved in the business to create, produce and distribute films and motion pictures. Kim Cartoon and two other websites used to run the movies on their pages giving free access to the users to the pirated movies. The Plaintiff also added Ministries of telecommunication, IT and several Internet Service Providers as the defendants. The Plaintiffs claimed that those websites were showing the copyrighted material of Disney to the viewers without their permission or appropriate licenses. Delhi High Court held that the websites were violating the copyrights of Disney and restrained them from communicating any copyrighted matter of the Plaintiffs on their websites in any manner whatsoever. Court gave them interim injunction to see that no other material was streamed illegally and Ministries were ordered to block the Service providers who facilitated such matter.
Microsoft Corporation v. Satveer Gaur
Plaintiffs consisted of Microsoft Company of Washington, USA with its subsidiaries in India, Adobe and Quest Co. Defendant was a company incorporated in India named Chetu which provided IT and software related services to consumers. The Plaintiffs contended that the Defendants had copied their copyright software and sold the pirated copies in the similar packaging without permission or licenses. This diminished the goodwill of the Plaintiffs and caused them loss in their business. Plaintiffs used the Business Software by the Alliance which was an NPO created to check the piracy which was used to report the unauthorized uses. Commissioner had investigated the computers of the Defendants and discovered that Defendants were using unauthorized content. The Court ordered permanent injunction against the Defendants and also made them pay compensation to the Plaintiffs.
There is a great burden on the authors, may it be artists, movie makers, music composers and computer programmers to come up with the new works so that adequate protection is given to them and they don’t suffer losses because of lacunas in the law.
The penalties against the infringements are very inadequate and do not create deterrence in the minds of the infringers. Digital copyright is not same as non-virtual copyright. The virtual data and technology is spread across the globe and a separate legislation is of utmost importance for digital copyright. In India, the digital copyright is kept on the same footing with the other copyright when the digital copyright is easily prone to Infringement and unauthorized use.
The machinery available with the investigative agencies is very obsolete as compared to the smart thieves who use high tech technology to infringe the works and gain profits from it. Technological betterment is very essential to investigate such matters and to give a tough spot to the advanced technologies used by the wrong doers.
Due to the lack of awareness, some authors are not aware of their rights and are not aware about the precautions that they can use to protect their work. Customers also need to be vigilant when buying the content as to the originality of the author. The mentality of the crowd plays a very important role. Considering the current situation, when consumer gets a little inferior quality content for a lower price, they don’t bother about the originality and accept the products. Since such content, whether digital or physical, is affordable and cheap, the consumers avoid going to the courts and reporting the content. They also fear the lengthy litigation process. Establishing less gruesome court procedures which are fast track for such matters is very important. The creative work keeps the economy running and if the authors fear the consequences, the economy will fall and creativity will die.