May 8, 2021

Copyright Infringement in Cyberspace: A Critical Study

Introduction

With the ascending era of Cyberspace which is more than just a modern psychological space having its merits and demerits. One of those demerits is “Copyright Infringement” which is illegal and immoral against the authorized individual, society and economy. A copyright is the right given to creators for their literary or artistic works, encompassing mediums such as books and e-books, plays, newspapers, computer programs, databases, films, musical compositions, paintings, photographs, sculpture, architecture, advertisements and maps.[1] It is primarily under the Intellectual Property Rights other than Patents, trademark and Geographical indications. With this Database Rights are also sui generis to IPR but still unknown and underdeveloped legally or socially.

Copyright both a national and global impediment

According to Muso, a digital-piracy analytics company, the first episode of last season of Game of Thrones, HBO’s epic fantasy drama was pirated 54 million times in 24 hours.It was most pirated in the countries of India and China. On the other hand it was legally watched by 17.4 million viewers on HOB’s platforms. This shows the larger picture of Piracy in the form of Copyright Infringement. Online platforms in the name of “Internet Intermediaries” , not necessarily legal, gives a very large space to piracy, theft and freebooting. With this, Hacking plays an ignited role in copyright infringement because it makes it easier for the hacker to enter someone’s personal data through dissemination of computer viruses.

One of the examples of these viruses is the ‘Cookie Monster’ which was Inspired by an American television character. A message which said ‘I want a cookie’ appeared on the computer screen. More harmful ones are Trojan virus, Mellisa etc. The Ministry of Information and Technology has introduced National information technology security centre (NITSC) as an approach to control crime which is another step in the field of cyberspace after the IT Act or IT Amendment Act, 2008. Some of the cases related to copyright infringement in cyberspace are:

1. Gramophone company of India vs Super cassette Industries Ltd.[2], here a remix version of a song was being sold by defendant on the internet or as mobile tune unethically and with no legal authority.The court observed that right of a copyright holder in a recording version to sell, whether hire or offer for sale or hire to public or distribute is neither diminished nor curtailed by the format in which it may be sold online.

2. Microsoft corporation v Yogesh popat [3], the Delhi High Court’s copyright infringement case and the plaintiff who was Microsoft Corporation was awarded with compensation of Rs. 23.62 lakhs against the offender company for uploading pirated software of Microsoft in computers the company sold after assembling parts.

3. Feist publication v/s Rural Telephone Service Co. Inc.[4] it was held that “there must be at least some minimal degree of creativity and what should be protected by copyright were the fruits of intellectual labour and not just sweat of the brow.”

4. Syed Asifuddinand Ors. v. State of Andhra Pradesh[5] it was held that alteration of a computer programme would prima facie amount to infringement thus punishable under Section 63 of Indian Evidence Act.

Ways to Protect Digital/ Intellectual Property

1) Digital Rights Management (DRM) technologies or Electronic Rights Management Systems ensure copyright through identifying and protecting the content from copying, controlling access, protecting its integrity, ensuring payment accessing it and tracking illegal users accessing the content.

2)Technical Protection Measures (TPM) allow companies in securing and protecting content such as music, text and video from unauthorized use.

Both the technologies are popular to sell and distribute content over the Internet.

Other techniques considered are Cryptography, Digital Watermark Technology, Digital Signature Technology, Electronic Marking and Security Features of Operating Systems.

Laws and Remedies with indian digital context

Where copyright is infringed, the owner of copyright is entitled to sue for remedies including injunction, damages, profit of accounts and delivery up of infringing goods.[6] It provides Civil remedies to licensees. In India, the Copyright Act 1957 was amended five times before the latest Copyright Amendment Act, 2012 bringing Indian copyright law into compliance with the World Intellectual Property Organization “Internet Treaties” like the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).

Other development was mainly Strengthening enforcement and protecting against Internet piracy in the world of cyberspace. Section 63 of the Copyright Act provides the punishment for offence of copyright infringement. With subsequent amendment Section 63 B, “knowing use of infringing copy of a computer programme is punishable with imprisonment for term not less than 7 days but may extend to three years and fine not less than Rs. 50,000 but which may extend to Rs. 2 lakhs.”

Further 2012 provides many better remedies “that any person who knowingly removes or alters any rights management information without authority or distributes , imports for distribution , broadcasts or communicates to public without authority copies of any work or performance knowing that electronic rights management information has been removed or altered without authority shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.”[7] Also, as per the amendment made by IT Act 2000 in Section 65B of the Indian Evidence Act 1872, “the electronic records can be produced as documentary evidence before the court of law. Access to computer databases and an analysis of “image copy” provide reliable evidence.”

Role International Treaties

World Intellectual Property Organization (WIPO) states that copyrights exist “to encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.” [8]

With that, Trade-Related Aspects of Intellectual Property Rights (TRIPS) which is an international legal agreement between all the member nations of the World Trade Organization (WTO) which dealt with harmonization of countries to follow the agenda of IP protection, however it failed partially.With that an increased usage of cyberspace lead to criminal misappropriation of data ‘globally’ and no more restricted to certain controllable boundaries. Though it brought amendments in many laws of India including Indian Evidence Act and Copyright Act which introduced various technological protection measures, author-friendly measures, specific provisions for disabled and promoted fair use of cyberspace.

Conclusion

With development of digital platforms there should be equally balanced amended laws to prevent rudimentary rules from becoming a loophole for perpetrators. It is always important to make a safe place for creators to create in this era of globalization, cyberspace and digital economy. If no better remedies are provided to the creators then there can be a decelerating move in creation and innovation on this larger and cheaper platform of cyberspace. Most of the issues and solutions depend on the Government policies like giving more importance to the word Copyright Infringement in the Information Technology Act.

References

[1] Georgios I. Zekos, “Copyrights and Trademarks in Cyberspace: A Legal and Economic Analysis”, 15 Chi. -Kent J. Intell. Prop. 313 (2016).

[2] 2010 (44) PTC 541.

[3] 2005 (118)DLT 580.

[4] 499 U.S. 340 (1991).

[5] 2005 Cri LJ 4314.

[6] Section 55(1) of copyright Act, 1957.

[7] Section 63 B, The Copyright Amendment Act,2012.

[8] Copyright and Related Rights, WORLD INTELL. PROP. ORG., http://www.wipo.int/copyright/en.


Author Details: Shubhangi Gehlot (Maharaja Sayajirao University of Baroda)

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