Copyrights and Infringement

This paper titled ‘Copyrights and Infringement’ discusses the rights and infringement involved with copyrights in the cyberspace by laying special emphasis on internet service providers.

I. RIGHTS PROTECTED BY COPYRIGHT LAW IN CYBERSPACE

The various parts of computer software that are protected by copyright include the graphical user interface, the source code and object code, the operating system that allows the application of software to interact with the hardware and the application software.

The owner of the computer programme has all the rights associated with it. Computer programmes in India can be protected under literary work within the Indian Copyright Act. Additionally, other related rights are exceptionally provided to an owner of the computer programme which also includes the right to sell and rent copies. The right to rent copies is only allowed for computer programmes and code which as configured as a substantial part of the object.

There are a plethora of rights available in terms of copyright within the cyberspace. For example, if Jolene developed computer software called COMP-OG (where you can compress large size files to small size files so that files can be easily emailed and later on, the small size files are joined together to generate the original size file), Jolene here is the author and owner of the software and will have the following rights:

• Jolene can reproduce the software in any material form and store it in any electronic format. She can store the software in CD-ROM, DVDs or even a USB drive. Additionally, she can also upload the software on her website.
• Jolene can issue copies of COMP-OG to the public by way of CDs et cetera.
• Jolene can make a user guide on how to use the COMP-OG software.
• Jolene can make any cinematographic film or sound recording in respect of the work so as to have a presentation or audio recording on how to use the software.
• Jolene can also make any translation of the work in different languages. She can also change the supported menus and user guides, audio language and presentation. The translation is merely the conversion of source code into object code.
• Jolene can additionally make any adaptation of the work by writing the COMP-OG software in different computer languages like C++ or VC++ et cetera to integrate the software.
• Jolene also has exclusive rights to sell, commercially rent or offer for sale the COMP-OG software by uploading it on a website, selling it online and receiving the payment online. Jolene can also make deals with software seller and gain profits from the same.

Therefore, plenty of rights such as the right to reproduce, right to communicate to the public, right to adapt, right to issue copies, right to represent or perform, rights to sell, rent or offer for sale along with rights to license and lease are available to registered copyright owners in terms of protection in the cyberspace.

II. INFRINGEMENT OF COPYRIGHT IN CYBERSPACE

The internet functions as a double-edged sword. Business firms look for the great development of network technologies so as to increase the viability and quality of digital content delivery. However, the growth of the technology in itself has resulted in increased levels of violation of their intellectual property rights.

While increasing broadband speed would enable faster and efficient delivery of content, it also increases the risk of widespread copyright violations. Due to the inherent difficulty in enforcing copyright against individual internet users worldwide, the copyright owners have found the answer by now placing legal liability for intellectual property infringement on those who allow and enable internet pirates to exist, namely, the internet service providers (hereinafter referred to as ‘ISP’s).

For the owners of IP, it is practical to sue ISPs because they’re in a position to police the internet. However, ISPs are passive carriers, much like telecommunication companies and thus, should be granted some limitation from liability.

Research shows that the internet is inevitable for different walks of life including business operations. Thus, there are now increasing calls to seek solutions to growing copyright threats as opposed to quitting the cyberspace.

Role of ISPs

The ISP is an entity that connects people to the internet along with providing other services such as website building and hosting. The ISP essentially has the telecommunication line access required to have a point of presence on the internet for the geographic area served. There are various intermediaries involved in delivering content online to end-users.

A person who wishes to launch a website will first open an account with a hosting service provider and then upload web pages onto the website which is actually located on the host’s server. Once stored in the server, the information uploaded becomes available to everyone with an internet connection.

An access provider is the one responsible for providing such internet connection. Thus, the data travels from host to access provider to the end-user. The uploaded document passes through the infrastructure of a network provider who will transmit and route it to the designated recipient. ISPs are instrumental in transmitting or disseminating third party content. The two main functions or services provided by ISPSs are:

• Website building and hosting
• Access providing

Liability of ISPs

Many countries have explored defining the liability of ISPs in disseminating third party content. Most of these laws relate to criminal law, IT law and copyright law. These statutes try to solve the problem by adopting either a horizontal approach or a non-horizontal approach. ISPs provide local, regional or national coverage for the client or provide other backbone services.

The horizontal approach covers copyright infringement along with all other potential areas of law where the liability of ISPs may arise. It fixes or determines the liability regardless of grounds for the illegality of the transmitted material.
On the other hand, under the non-horizontal approach, the potential liability of ISPs is determined under each law where it may arise. Thus, various statutes would determine ISP liability.

Immunity from Liability

The IT Act, by way of the Amendment of 2008, makes significant advances in codifying the legal position of intermediaries and their liability in India. This provides immunity to intermediaries from liability for any data, or communication link made available or hosted by him.[1]

Prior to the amendment, §79[2] provided immunity to service providers only with respect to liability under the IT Act, 2000 and the rules and regulations thereunder. Therefore, these service providers weren’t entitled to immunity with respect to liability arising under other statutes.

However, post amendment[3], contains a non-obstante clause and therefore, affords protection to service providers with respect to liability arising under all statutes, and thus, significantly heightening the level of immunity available to these ISPs.

However, the position of intermediaries must be read in accordance with §81[4] when questioning their liability. On a prima facie reading of this section, it seems like immunities under §79 aren’t available for copyright infringement. However, the object of amending §79 was to embrace the horizontal approach to intermediary liability in India.

The purpose of introducing this amendment would be defeated if §81 is read as having an overriding effect over §79 to the extent that immunity shall not be available in cases of liability for copyright infringement. The scope of the section is likely to become narrow if intermediaries are disentitled to avail immunity for copyright infringing third party content.

Therefore, §81 may be interpreted as having an overriding effect over all other sections of the IT Act, except §79, thereby ensuring that the rights of the copyright holders are not restricted by the Act in cases other than those covered by §79.

The exact scope of the provisions is determinable however, only through judicial pronouncement and precedents in this regard. The liability of ISPs for copyright infringement is not expressly covered by the Indian Copyright Act.

III. Judicial Pronouncements

• Playboy Enterprise v. Frerna[5]

In this case, Techs Warehouse BBS, a subscription-based computer bulletin board service run by George Frerna, was liable for copyright infringement when BBS’ subscribers distributed unauthorized copies of Playboy’s copyrighted photographs on their bulletin board.

The Court, in this case, held that Playboy’s right to distribute copies to the public was violated by Frerna since Playboy held exclusive rights. The Court further held that it did not matter that Frerna was the originator of the authorized copies, the mere fact that he supplied a product containing unauthorized copies, violated Playboy’s exclusive rights.

• Feist Publication v. Rural Telephone Service Co.[6]

It was held in this case that there must be at least some minimal degree of creativity and what should be protected by copyright is essentially the fruit of intellectual labour and not just sweat of the brow. In India, databases are protected as literary works.

Compilation of data need not be protectable on its own unless combines with necessary selection coordination and arrangement and combines with tests of abstraction, filtration and comparison. Through the internet, the work of authors can be displayed in different jurisdictions and is very difficult to detect.

Thus, display rights can easily be violated through the internet. The software can thus, be easily communicated to the public without authorization by downloading the software from one computer and then making unauthorized copies that can be rented out or retailed later.

• Religious Technology v. Netcom[7]

The Court in this matter held that temporary copying involved in browsing is the functional equivalent of reading and doesn’t implicate copyright laws. Thus, with regard to browsing, one must come to the conclusion that it doesn’t amount to the violation and can be deceived to be fair dealing.

These cases from the Courts of the United States of America are now providing legal importance in India. Both the advancement in informational technology and intellectual property rights have shown that the current Indian law is not essentially ready to deal with new cybercrimes that may arise, especially in terms of copyright violations. Thus, India has resorted to understanding international judicial pronouncements so as to ascertain the exact scope of the provisions in our Acts.

IV. Conclusion

The growth of the internet has created brand new cyberspace for the exploitation of copyrights. An analysis of copyrights in the cyberspace reveals that there is always a mixed result of new opportunities and threats.

Cyber technology offers new ways of commercialization or exploitation of copyrights by business firms and individuals. These ways have now enabled greater scope for global expansion and market reach around the world while promising huge potential for generation of revenue.

However, these new opportunities also come with parallel threats that severely undermine the very rights of copyright holders and rightful owners. The magnitude of threats is unprecedented with the technological feasibility making it possible for easier piracy and easier distribution of such pirated works to masses with the single click of a button. It is due to these threats that there is a call for increased regulation of the cyberspace to protect copyrights.

The cyberspace basically consists of transactions carried out on the internet and can easily surpass national regulatory controls. There is constant doubt as to the effectiveness of any single domestic regime in regulating the said cyberspace.

Many of the domestic copyright regimes are still relatively new and thus, usually ill-equipped to address copyright in the cyberspace. Thus, there is a call for increased international cooperation. Law and technology need to come together to fight effective solutions so as to answer pertinent questions related to rights and infringement in the cyberspace.

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References

• The Copyright Act, No. 14 of 1957, Acts of Parliament, 1957, India.
• Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
• Shlisha Devadiga and Shweta Choudhary, Copyright Act, 1957, Presentation, CMR School of Legal Studies, 2018
• Vijay Pal Dalmia, India: Copyright Law in India – Everything you Must Know, Mondaq papers, 2017
• Atul Satwa Jaybhaye, Cyber Law and IPR issues: The Indian Perspective, Bharati Law Review, 2016
• Nehaluddin Ahmad, Copyright Protection in Cyberspace: A critical study with reference to electronic copyright management systems, Communications of the IBIMA, Volume 7, 2009
• Indu Sharma and Afshar Alam, Privacy and Freedom Issues in Cyberspace with Reference to Cyber Law, International Journal of Computer Applications, 2016
• Pankaj Kakde, Right to Privacy and its Infringement in Cyberspace, S.P College of Law
• Tabrez Ahmad, Copyright Infringement in Cyberspace and Network Security – A Threat to E-Commerce, KIIT Law School
• Ravindra Sharma, Copyright under Indian Cyber Law, Symbiosis Center for Information Technology, 2009
• Karnika Seth, Protecting copyright in the cyberspace, 2013
• Ministry of Electronics and Information Technology, FAQs on IPR and Copyright, Government of India, 2015

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[1] §79(1), Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.

[2] §79, Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.

[3] Supra 1

[4] §81, Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.

[5] Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552

[6] Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340

[7] Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361

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