• TIPLPR

ARE THE CURRENT IPR AND CYBER LAWS ENOUGH TO PROTECT THE COPYRIGHT HOLDERS?

Updated: Feb 28

Introduction

Copyright infringement refers to a violation of the rights of the IP holder. In the past two decades, the development in cyber space has revolutionized the world and the internet is being used for more than mere easy sharing of data. With the growth in cyber space, it has become extremely easy to anonymously download data, music or software without the permission of the IP holder.

YouTube, almost on a daily basis, takes down videos of creators, due to copyright violations. These videos are often taken down for using songs, music or film snippets without prior permission. These copyright claims often include parody songs of the original song, as seen in the case of YouTuber James Charles. Due to the unique matrix of cyber space, it has given rise to various new types of IPR issues in cyber space such as deep linking, framing, piracy of music and/or video and piracy of software.While IPR related issues have become one of the major challenges in the cyber world, video streaming platforms like YouTube and Tik-Tok have proven to be especially vulnerable.

In a world of ever-evolving technology, it becomes necessary to analyze whether the current provisions in the Copyright law along with those in the IT Act are sufficient to handle the challenges brought on by the IPR violations.

In this article, the author seeks to analyze the various kinds of IPR violations in cyber law and the challenges which arise while encompassing the multiple aspects of the said violations. The author also seeks to suggest probable solutions to overcome the challenges posed by the copyright infringements in the cyber world.

Copyright Infringement

Copyright, Designs and Patents Act, 1988 fails to talk about the internet and the products thereon. Even the Indian Copyright Act, 1957 does not talk about online piracy and theft but only discusses software theft. However, Section 13 of the Copyright Act, 1957 lists out that the author of any literary, dramatic, artistic or musical work can create an amalgamation of rights and be covered under the Copyright Act as a digital product.

There are various types of copyright infringements, namely: linking, framing, and software piracy. Linking is the act which allows the web user to connect to another page or site from the original site. This page could be accessible from any location and connects the original page with the linked page and shows the user the contents of the same. However, this may result in copyright infringement for the owner of the linked page.

To comprehensively understand this concept, assume that a person named A created a website and in order to generate more traffic linked various subordinate websites. Another person named B created another website and linked all of A’s subordinate websites in his own. Now, the customer base can access the material available on A’s website without actually visiting it. This is called linking or deep-linking.

The first case of linking in the cyber world was the case of Shetland Times Limited v. Jonathan Wills and Anr. Though the case did not elaborately discuss the subject-matter, the court provided an injunction to preclude the deep-linked websites from the page, which gave an insight into the court’s stand on the topic.In one of the landmark cases on the topic, Ticket Master Corp. v. Ticket.com Inc, the Court held that deep linking is not strictly prohibited as long as it can be established that there was no intention on the part of the website owner to mislead or confuse the public.

In Kelly v. Arriba Soft Corp., the Court distinguished between copying and importing and clarified that transformation of transformation of a particular copyright work for a completely different use does not amount to infringement.An analysis of the international case laws over time show the evolution of the judiciary’s stand on the topic and how the judiciary has allowed defenses like fair use to be used in cases of copyright infringement in the cyber space.

Framing is an option where in-screen websites are available within the main frame. In this, the owner of the website uses information and content from another website as a frame in itself. This act can trigger a copyright violation because the customers may assume that this is done with the prior permission of the owner of the framed website while this is not always the case.

While there has been no substantial evolution on the topic by way of case laws or legislation, the fact that the act creates confusion in the minds of the consumers makes it a trigger for copyright violation.

Software piracy refers to the act of illegally selling, modifying, using, distributing or copyrighting a software which is legally protected by the copyright laws.

Copyright Protection In India

In the Indian context, as per sections 14 and 51 of the Copyright Act, copyright infringement can be claimed in case of reproducing, issuing, communicating work to the public without prior permission. However, since linking technically does not do any of the above-mentioned acts, the person responsible cannot be held liable under these sections.

Section 2(ff) of the Indian Copyright Act encompasses such acts as it talks about any means of display including communication on the websites on the internet through any means which enables communication to the public simultaneously.

In India, the case of Naukri.com v. Bixee.com has clearly shown the Indian judiciary’s stand on deep-linking the former’s site result rather than the home page which resulted in the entire data of the plaintiff being available to the consumer without visiting the site. The Court disallowed the defendant from linking, downloading or previewing any of the plaintiff’s content without prior permission as the not doing so amounted to copyright infringement.

Analysis Of Laws In India

The Berne Convention and the TRIPS Agreement, both of which India is a signatory to, have played vital roles in the evolution of the copyright law with regard to cyber space in India. The main purpose of the above-mentioned institutions is to create a harmonized jurisdiction between all member countries and protect the copyrights of the various authors.

The database and computer software are protected in India as a part of literary work under section 2(o) of the Copyright Act. The authors of multimedia, which can be interpreted as a combination of texts, audios and videos or the different elements such as texts, audios and videos, in their separate nature and individually, are protected under Section 14 of the Act. This means that while multimedia as a single entity may be difficult to protect under the Copyright law, when the same is broken down into its different elements, namely-texts, audio and video, it can be aptly protected under the Copyright law.Section 52 of the Act (after being amended in 2012) lays down the circumstances in which reverse engineering of a software code is protected under the defense of fair use and is not considered to be a copyright infringement.

To further protect the authors, Section 65A of the Copyright Amendment Act states that any person who attempts to circumvent the safety measures employed by the author to safeguard from copyright infringement will be held liable for the same. In the case of Syed Asifuddin v. The State of Andhra Pradesh, the Court clearly observed that tampering with a computer code is an offence as per section 65 of the IT Act. The Court also noted that computer software codes are literary works under sections 13 and 14 of the Copyright Act and therefore any tampering or unauthorized access to the same will be considered as copyright infringement under section 63 of the Act.

After referring to the above-mentioned statutory provisions and case laws on the subject, it can be inferred that while copyright infringement in cyber space in India is still in its nascent stage, the statutory laws, have tried to protect the works of the authors through various means. While initially the Copyright Act was silent on various issues of copyright infringement in the cyber space, the amendment of 2012 has strengthened the protection provided to software codes and other multimedia works of cyber space and tried to encourage further creativity and development in the field.

The IT Act and the Copyright Act (after the 2012 amendment) have played key roles in protecting the copyrights in the cyber world in India. Additionally, the John Doe Order, as evolved by the Indian courts, which ensures minimal information of the perpetrator is required at the time of filing the complaint, has also helped in protecting the cyber copyrights in India.However, India severely lacks laws with regard to the distinction between the private and public domain of the cyber world and also does not have a harmonized jurisdiction system for the implementation of the laws.

India is a signatory to various international conventions. As previously mentioned, it is a signatory to the Berne convention which deals with how and under what terms the work of an author is used. India, being a developing country is at an advantage as the convention also provides for certain special provisions for developing countries. Article 2 of the convention also provides protection to computer programs as literary works. India also recently became a signatory to WIPO Internet treaties which aims to protect the rights of authors of literary works and notably, phonograms.

However, India is not a party to the Rome convention or the Beijing Treaty on the Audiovisual Performances. The latter is especially notable as India is one of the biggest audio-visual industries in the world.

While treaties like the TRIPS agreement and the WIPO treaties do provide protection to the IPR in the cyberspace, they are not enough to cover every aspect.Therefore, it is the need of the hour for India to embrace international treaties and make laws along those lines which lay down clear distinction between the two domains of the cyber world and at the same time also make harmonized laws of jurisdiction along with the other nations to ensure uniform jurisdiction system and laws with the regard to copyright infringement in the cyber world.

Conclusion

The concept of copyright infringement is still in its nascent stage in India. In India, the two main laws that cover the copyright infringement in cyberspace are the IT Act and the Copyright Act. While, the amendment of 2012 has brought the laws a step closer to protect the copyright owners, there is still a long way to go.

Jurisdictional challenges in the age of the internet is one of the major concerns with regard to statutes related to cyberspace and therefore it is of the utmost importance that the nations come together to form an uniform jurisdiction system for better implementation of the laws.

It is also notable that the current Indian laws on the subject are insufficient and also are unable to meet the international standards. Considering that India is now beginning to give a push to new innovations in the cyberworld by encouraging children to engage in coding and software development, it is important that the Indian statutes are able to provide the optimum level of protection to the copyright holders so that there is minimal threat of theft of work and therefore no brain drain.


This article has been written by Megha Gupta. Megha is a fifth year law student from Dr. Ram Manohar Lohiya National Law University, Lucknow. Her areas of interest are history, constitutional law, human rights and IPR.