In the last two decades, there has been a manifold increase in digitalization and technological advancements. People have become less dependent on print media and more likely to use a digital medium such as computerized documents of soft copies. While these developments have certainly made our lives easier, it has also led to many concerns regarding intellectual property right protection. Given the fact that the copyright law was originally framed to protect literary and artistic works, it needs to be seen how much the law has evolved to grant protection to digitalized works. In doing so, emerging trends in digital copyright law.
Copyright infringement can take place in various forms in this digital era. Firstly, take the example of social media. With the advent of social media, anyone can post anything on it. So a person can re-post someone else content and claim it to be his original work. This is certainly a copyright infringement. Even if the person does not claim the work to be his own, copyright infringement can also take place if it does not give acknowledgement of the original author. Moreover, there are many pirated websites which have access to unauthorized copies of films and books. Every time a person downloads such unauthorized copies, copyright infringement takes place and the original owner loses royalty. Then there is also a threat of cyber-squatting. Here a person can make a fake website impersonating itself to be the original website of any famous brand. This can not only affect the sale of the reputed brand but can also effect its brand value. Overall a Digital Asset may include software, photographs and videos, websites, graphics and technical data. All these instances indicate that there is a need to protect copyright infringement in the digital medium.
In the next section, I would analyze how much the current copyright regime could grant protection in this regard.
Copyright is basically the legal protection given to any creator of an original literary or artistic work. The International Conventions on copyright law do provide certain protection to digitalized works. For example, while Article 2(5) of the Berne Convention is restricted to only protection to ‘literally and artistic works’, computerized data can be given protection under literary work. Further, Article 10(1) of the TRIPS Agreement says that ‘computer programs’ shall be protected as literary works under the Berne Convention. Article 10(2) further defines ‘compilation of data’ as something, whether in a machine or any other form, must be readable and arranged in such a manner which constitute intellectual creations. The Article has given a much broader definition by introducing the words ‘other material’ which means even non-data could be granted protection.
In order to prevent online piracy, the US legislatures had enacted the Digital Millenium Copyright Act way back in 1998. This Act had adopted two World Intellectual Property Organization (WIPO) Conventions: i) Copyright Treaty (“Treaty on Certain Questions Concerning the Protection of Literary and Artistic Works”) and ii) Performances and Phonographs Treaty (“Treaty for the Protection of the Rights of Performers and Producers of Phonographs”. The Act provides various protection against online piracy. Some of them are prohibition of technologies to circumvent control access to copyrighted works. It also prohibits use or distribution of technologies to circumvent access controls. However, the law also provides certain exceptions. This include using copyrighted works for educational or nonprofit purposes, law enforcement agencies, encryption research and parents attempting to protect their wards from the harmful effects of the internet. Any content creator can approach to the other website owner, who has allegedly stolen the content from the original owner, or can approach third party service providers like DMCA.com requesting the latter to take down the stolen content from the infringer’s website. In the case of social media intermediaries, the original content owner can directly approach the social media sites like Instagram or Facebook, with a proof of such infringement, and request for taking down the stolen post. These are called the DMCA Notices. Recently, the Twitter Account of the Union Minister for Information Technology has been blocked by the social media site for failing to comply with the DMCA Notice.
The 2012 Amendment to the Indian Copyright Act had introduced the definition of ‘cinematograph films’. It has been defined as sound recording accompanying visual recording and even includes things which are analogous to cinematography like video games. Moreover, the definition of ‘work’ under Section 2y includes cinematograph films and sound recordings. The 2012 Amendment had also included the definition ‘visual recording’ which includes any recording of moving pictures or representations stored in any medium. All these amendments have made the Act in consonance with the Internet Treaties, which are, WIPO Copyright Treaty and WIPO Performances And Phonograms Treaty.
Section 65A of the Act was also inserted to give certain exceptions to copyright infringement for digital purposes. These exceptions are similar to the US law. It includes encryption research, conducting any lawful investigation, doing anything necessary for testing of security of a computer system and taking measures for national security. Interestingly the exception of parents infringing the copyright for protecting their children from the harmful effects of the internet, which is present in the US law, has not been incorporated in the Indian law.
The National Intellectual Property Right Policy, 2016 specified the definition of ‘pirated copyright goods’. It has to fulfil two conditions. Firstly, copies should be made without the consent of the right holder or authorized agent and secondly, it has to be directly or indirectly copied from an article where the making of that copy would have constituted a copyright infringement. Moreover, certain changes in the Cinematograph Films Act was also proposed including incorporation of Anti-Camcording Provisions. Such provision would penalize anyone using recording devices for copying or transmitting a film to 3 years imprisonment. However, the Bill has been sent to the Standing Committee and not yet been passed.
Courts have often passed John Doe Orders to safeguard the actual owner from online piracy. These Orders are generally passed against unknown defendants when there is a threat of online piracy by the latter. Thus, in order to obtain a John Doe Order, an applicant has to show three things i) a prima facie case ii) likelihood of irreparable damage if the order is refused and balance of convenience in favor of the plaintiff. It had originated from the Taj Television Limited vs Rajan Mandal case where a John Doe Order was issued against cable operators restraining unauthorized broadcasting of Football World Cup Matches. Similarly John Doe Orders have been issued to protect movie piracy. For example, in Balaji Motion Pictures Limited vs BSNL, the Bombay High Court had issued the order against websites which are transmitting pirated copies of the movies Great Grand Masti even before its release. The court ordered to take down all such URLs. This Order has also been used to protect domain name. In LOREAL SA vs Ashok Kumar the defendants were infringing the domain name of LOREAL SA by using fake email ids by impersonating themselves as the employees of the well-known beauty brand. The Delhi High Court promptly granted the relief by restricting them from using those email ids. Recently in the Sci-Hub case, popular publishers have moved the Delhi High Court to block websites like LibGen and Sci-Hub which provide pirated copies of books and research articles. The matter is still sub-judice as it involves the interests of many students and researchers who cannot afford the expensive books for their academic purposes.
In this article, I have argued how the Indian Copyright Act has evolved over time to cater to the needs of copyright infringement in the digital era. The US has made a far more progress in this regard by bringing a separate law for its protection. While India has made changes to its Copyright law, it is still not adequate to prevent piracy of films and other digital content.