Challenges of Copy Right And Cyber Space
“……. What is worth copying is prima facie worth protecting?” -David Bainbridge
“Privacy may actually be an anomaly” -Vin cerf (Google’s Chief Internet Expert)
Answers to the following queries will certainly enable us to have a refreshing thought and better appreciate the efforts of the Government, Social Organisations, Institutions and also individuals.
1. How does the cyberspace overshadow the Intellectual Property Rights (I.P.R) more particularly copyright, in the light of ongoing increase in the cybercrime rate?
2. Is there no scope to tighten the cyber laws, take stringent action against the defaulters and bring relief and succor to the innocent and gullible victims?
3. Is it not the need of the hour that voluntary organisations across the World to wake up and initiate steps in line with the Consumer Protection Act or any other redressal measures provided under the law to put an end to this menace that spread like a cancerous disease?
The main focus of this paper is to enlighten not only the academicians but also the non tech savvy laymen to have first-hand information about the internet, cyberspace and their linkage with Intellectual Property Rights especially copyright.
This paper acts as a litmus test to check the use and misuse of cyberspace. The only difference between a traditional crime and a cybercrime is that the cybercrime involves in a crime related to computers.
A better example is intellectual property in cyberspace. Internet is one such a major threat, which has captured the physical market place and has converted into virtual market place.
Therefore, it is the duty of I.P.R owners to invalidate and reduce such malafied acts of criminals by taking proactive measures.
It is of utmost importance to know more about copyright with regard to computer programs / software, computer database and various other works in cyberspace. Copyright is the key issue in the intellectual property rights in digital era.
Under the T.R.I.P.S (Trade Related aspects of Intellectual Property Rights) agreement, computer programs now qualify for copyright protection just as any other literary work as well as other forms of Intellectual Property Rights protection.
The first attempt to harmonise copyright law at a global level dates back to adoption of the Berne Convention in 1886.
As per Sec.13 and 63 of the Indian Copyright Act, 1957; literary works, pictures, sound recordings and other creative works are protected from being copied without the permission of the copyright holder.
The characteristic of the internet has outperformed of the law; thus the question arises whether copyright is shaken by the advancement of technology and that it is significant in the digital era. The borderless nature of internet calls for a more encouraging relationships in other jurisdictions and close operation with international organisations.
The following conclusions are important: -
1. Cooperation amongst authorities is often a matter of sovereignty and pride.
2. Reinforcement of the role of multinational companies presupposes the establishment of effective over sight mechanisms.
3. Internet being the most powerful instrument of the 21st century needs to be used as a facilitator for copyright protection.
Copyright is a key issue in Intellectual Property Rights (I.P.R) in digital era. Though the term “Copyright” is not new, the modern technology brought in a great importance to intellectual property and copyright in particular, which has cropped up in new concepts such as computer programs, computer database, computer layouts, websites etc.
A great care is taken to trace out the linkage between copyright and cyberspace, by taking the readers to have glimpses of database history, software nuances, which establish a ground reality upon this topic and clinches the issues with no iota of doubts anymore.
The internet has now become all encompassing; it touches the lives of every human being. We cannot undermine the benefits of internet; however, its anonymous nature allows miscreants to indulge in various cybercrimes.
Cyberspace can be defined as an intricate environment that involves interactions between people, software and services.
Cyber security denotes the technologies and procedures intended to safeguard computer networks and data from unlawful admittance of weaknesses and attacks transported through the internet by cyber delinquents.
Intellectual property refers to creations of the human mind, for example; a story, a song, a painting, a design, a program etc. The facets of intellectual property that relates to cyberspace are covered by cyber law namely
Ø Copyright Law
Ø Trademark Law
Ø Semiconductor Law
Ø Patent Law
Data protection and privacy laws aim to achieve a fair balance between the piracy rights of an individual and the interests of data controllers such as Banks, Hospitals, Electronic mail Service providers etc.
The Indian Penal Code (I.P.C) (as amended by I.T Act) penalizes several cyber-crimes. These include forgery of electronic records, cyber frauds, destroying electronic evidence etc.
Digital evidence is to be collected and proven in the Court of Law as per the provisions of the Indian Evidence Act (as amended by the I.T. Act 2000).
Every new invention in the field of technology experiences a variety of threats. Internet is one such a major threat which has captured the physical market place and has converted into a virtual market place. The need of the hour is to initiate stringent strategies in order to design and implement a secure cyberspace and protect copyright owners from the clutches of the wrongdoers.
As of now, copyright has been adopted to protect internet items. It protects original work or work that is fixed in a tangible medium that means it is written, typed or recorded. Since it is not designed for internet, copyright law regarding internet is not much clear and transparent.
Cyberspace is a virtual world, which technically exists only in computer memory, but it is interactive and pulsing with life. In fact, cyberspace is a living organism which changes frequently because of constant downloading and uploading information that is fed and also large number of people frequenting this medium. Cyberspace is linked to copyright in the sense, a person can come on the sight and talk to the people of various locations, read, publish, research, hear music, watch video, look at art, purchase and sell things, access to government documents, send e-mails, download software and receive technical support. Now, on the internet, copyright faces its greatest challenge. The beauty of digital media is that there is no degradation in successive copying. The other important factor about digital media is the case of transmission and multiple uses. The internet poses two basic challenges for I.P.R administrator, what to administer? And how to administer? Copyright is not meant to grant to its holder’s exclusive control of their works, rather it is a very specific bundle of rights designed to foster creativity for the public interest.
Copyright violations have become rampant since the advent of cyberspace and the development of related information technologies. Copyright threats are not limited to few blockbusters but are rampant in cyberspace, affecting a range of digital products. Moreover, flagrant violation of copyrights is a just a tip of the iceberg of a much services problems of Intellectual Property Rights (I.P.R) threats in the internet. The advent and growth of internet has resulted in the creation of an unruly and anarchic space called the cyberspace, which poses extremely serious threats to copyrights. To control dissemination and copying of works, copyright owners have been developing technological protection measures like E.C.M.S (Electronic Copyright Management System).
It is the exclusive and assignable legal right given to originator for a fixed number of years to print, publish, perform, and film or material.
“It is a legal device that gives the creator of a literary artistic, musical or other creative work, the sole right to publish and sell that work.”
“It is domains characterized by the use of electronics and the electromagnetic spectrum to store, modify and exchange data via networked systems and associated physical infrastructures. In effect, cyberspace can be thought of as the interconnection of human beings through computers and telecommunication without regard to physical geography.”
With the onset of modern technology, more importantly the internet, copyright protection assumed greater significance. Now a days, copyright law has been incorporated and put into usuage to protect internet items. It protects original work or work that is fixed in a tangible medium i.e.; it is written, typed or recorded. In fact, the internet was introduced in 1960 and WWW in 1990’s; which clearly established the fact that copyright which a manual operation was hitherto got transformed into electromagnetic operation.
Although the current copyright laws do provide protection to copyright owners, it also has some shortcomings as to the effectiveness of copyright protection being enforced on the people. Thus the boundaries nature of internet calls for a stronger and mightier relationship in other jurisdictions and close cooperation with international organisations. It is therefore the duty of the society that needs to be educated about the necessity of copyright protection in order to check, control and also prevent any unauthorized usuage.
Cyberspace is a virtual world, which technically exists only in computer memory, but it is interactive and pulsing with life. The advantage in cyberspace is that one can meet and talk to new people, read, publish research, hear music, watch video, look at art, purchase and sell things, access to the government documents, send e-mails, download software and receive technical support. One-way cyberspace is a living organism emanable to frequent changes to suit the demands of the public. Now a days, people are so accustomed to the cyberspace that it has become a part of our daily life and are more dependent on it even for a slightest need for example to book a movie ticket, they go online, so is the importance of cyber space.
Before going into the details it is better to know and understand about “database”. Indeed, database is a collection of data arranged in a systematic way to allow for the easy and efficient retrieval of information. It is usually in an electronic form. A database must be distinguished from a database system (also known as Data Base Management System (D.B.M.S)). This is an important distinction to keep in mind when considering what is protected in a database. Thus computer database means a representation of information knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalized manner and have been produced by a computer, computer system or computer network.
A database can generally be looked at as being a collection of records, each of which contains one or more fields (i.e. pieces of data) about some entity (i.e. object), such as a person, organization, city, product, work of art, recipe, chemical or sequence of D.N.A (Deoxy ribo Nucleic Acid). For example, the fields for a database that is about people who work for a specific company might include the name, employee identification number, address, telephone number, date of employment etc.
Scope of Copyright And Database
Database is meant to describe a compilation of works, data or other materials (i.e. collection of facts) arranged in a systematic or by logical principles in a methodical or scientific manner. In a way put to use by the compiler.
According to Lord Atkinson, for the subsistence of copyright, “it is necessary that labour, skill and capital should be expended sufficiently to impart to the product some quality or character which the raw material does not possess and which differentiates the product from the material.
Accordingly, database refers to collection of data, works, information or other independent material arranged in a systematic or methodical way following some basic principle of compilation; database should be given copyright protection even if they are the compilation of non-original works as they are the result of skill and labour employed by the author in creating the work7. For example, a database of articles on “Indian Intellectual Property Laws” should be given copyright as it is a work that is the result of labour, skill and capital employed and judgement expended in selecting and arranging the articles by the creator of the database.
In India, databases have been treated as literary works. According to Section 2(o) of the Copyright Act 1957 “Literary works” include computer programs, tables and compilation including computer database.
What The Internet Has To Do With Copyright?
So far international copyright law was based upon the Berne Convention for the protection of literary and artistic works and the T.R.I.P.S (Trade Related aspects of Intellectual Property Right) of 1995. Since 1974, the international copyright instruments have been managed by a special United Nations Agency by name W.I.P.O (World Intellectual Property Organisation).
W.I.P.O’s objective as per the treaty is to promote the protection of intellectual property throughout the World through cooperation among the states and where appropriate, in collaboration with other international organizations. Currently W.I.P.O consists of 180 member states. W.I.P.O administers six copyright treaties and aims at “homogenizing national intellectual property protections with an ultimate eye towards the creation of a unified, cohesive body worldwide international law.
The Berne Convention
The Berne Convention of 1886 was the first step in harmonizing copyright law at a global level. The convention established a minimal level of copyright protection for the member nations to follow and adopt the “National Treatment Policy”
The T.R.I.P.S (Trade Related Aspects Of Intellectual Property Rights) Agreement
The General Agreement on Tariffs and Trade (G.A.T.T) has also addressed copyright issues, in parallel to W.I.P.O. The goal of G.A.T.T is to promote the reduction of tariff barriers to the international movement of goods. In 1994, the Uruguay round of G.A.T.T produced T.R.I.P.S. The same round also instituted the W.T.O (World Trade Organisation). The T.R.I.P.S Agreement adopts portions of the Berne, Rome and Paris Conventions in enunciating norms for intellectual property laws.
W.I.P.O (World Intellectual Property Organisation)
W.I.P.O is an organization of the United Nations (U.N). W.I.P.O’s activities are of four kinds:- registration, promotion of inter-governmental cooperation in the administration of intellectual property rights, specialized programme activities and lastly dispute resolution facilities. In 1996, member countries found it necessary to form a treaty to deal with the protection of copyright evolvement of new technology.
Internet In India
The internet system has spread very fast in India. Eg: V.S.N.L (Videsh Sanchar Nigam Limited), a Public Sector Unit started its commercial activities on 15th August 1995. With the growth of internet, issues of Intellectual Property Rights are also likely to increase.
The internet poses two basic challenges for I.P.R administrator. What to administer? and How to administer? One of the basic copyright issues in the internet is determining the border between private and public use. The Indian Copyright Act,1957 (amended in 1994, 2012) also makes a distinction between reproduction for public use and can be done only with the right holder’s permission, whereas the law allows a fair dealing for the purpose of private use, research, criticism or review.
The right of reproduction presents certain fundamental problems over the internet. This is because of the basic nature of internet transmission. Reproduction takes place at every stage of transmission. Temporary copying (known as caching) is an essential part of the transmission process through internet without which messages cannot travel through the networks and reach their destinations. In the Indian Law, reproduction has to be in a material form but includes “storing of it in any medium by electronic means.” Case laws need to make it amply clear about the temporary and permanent reproduction, that takes place in the internet communications.
W.I.P.O And Digital Copyrights
The Copyright Treaty 1996 and Performances and Phonograms Treaty 1996 are the two major international legal instruments relating to cyberspace created under the auspices of W.I.P.O. A close analysis of W.I.P.O Copyrights Treaty would reveal the scope and limitations of protection related to digital copyrights.
W.I.P.O Copyright Treaty addresses these specific rights namely the rights of distribution, rental and communication to the public. The Treaty also interestingly addresses the issue of Rights Management Information (R.M.I) which is relevant to the popular Digital Rights Management (D.R.M)
Copyright protection gives the author of work a certain “bundle of rights”, including the exclusive right to reproduce the work in copies, to prepare derivative works based on the copyright work and to perform or display the work publicly.
Right of Reproduction
Here the question arises, whether the internet users copying of the author’s work constitutes an infringement of the author’s copyright?
Public Performance And Display Rights
The right that does get affected is that of display. Display of the work is also done by making copies, which are then retailed or lent out. This also falls under the right to display, which the holder of the copyright has.
Copyright Law grants the holder of the copyright the exclusive right to distribute copies of the work to the public by sale or by the transfer of the ownership.
It is a violation on the internet. Caching may be local caching and proxy caching. In addition, proxy caching may give rise to infringement of the right of public distribution, public policy, public performance and digital performance.
Legal Aspects And Challenges
Copyright in a work is infringed when the work is copied without the consent of the copyright owner. A copyright law deals with the form in which the work is expressed. It doesn’t monopolise the idea of information. As a medium, it allows a person to access a large amount of information and to copy that information in the same state as it is displayed.
Electronic Copyright Management System (E.C.M.S)
The copyright owners have an option to make use of the technology protection measures. E.C.M.S is indeed a legal framework to protect against third parties circumventing these systems.
Technology protection measures may be classified as follows: - access control measures and copy control measures. Examples of access control measures include passwords, encryption and set top boxes. E.C.M.S is used to enable the copyright owners to track, manage or prevent copying of their work, such as digital watermarking system. This system allows the copyright owner to track and identify unauthorized copies made by the original work.
Legal Aspects Of Electronic Copyright Management System
The following are the two important legal aspects
(a) D.M.C.A (Digital Millennium Copyright Act 1998)
This Act (D.M.C.A)provides firstly, that no person shall circumvent a technological protection measure that effectively controls access to a work protected under the Act. The Second part prohibits trafficking in devices or services for circumventing technology measures that control access. The third part prohibits trafficking in devices or services for circumventing technology measures that protect the rights of a copyright owner.
(B) E.U.C.D (Europe Union Copyright Directive)
The main focus was on the preparatory activities, because the real danger for Intellectual Property Rights will not be a single act of circumvention by individuals but preparatory activities to produce devices or offer services to circumvent.
Protection Of Database In India
The Indian Copyright Act 1957 protects “Databases” as “Literary Works” under Section 13(1) (a) of the Act which says that copyright shall subsist throughout India in original literary, dramatic, musical and artistic works. The term computer Database has been defined in the Information Technology Act 2000 for the first time. Section 43 of the I.T. Act 2000 provides for compensation to the aggrieved party up to one crore rupees from a person who violates the copyright and cyberspace norms. Also Section 66 of I.T.Act 2000 provides for penal liabilities in such a case.
Copyright Protection Of Computer Software / Program
Under the T.R.I.P.S Agreement, computer programs now qualify for copyright protection just as any other literary work, as well as other forms of I.P. protection. Copyright, matters most in the computer software industry to off- the shelf business applications sector.
Under T.R.I.P.S, developing countries are permitted the flexibility to allow reverse engineering of software.
For the first time in India, the copyright law clearly made several provisions in this regard to protect the copyright owners: -
Ø The right of a copyright holder
Ø Position on rentals of software
Ø The rights of the user to make backup copies
Ø Section 14 of Copyright Act makes it illegal the distribution of copies of copyrighted software without paper or specific authorization.
Ø The violator can be tried under both the Civil and Criminal Law
Ø Heavy punishment and fines for infringement of software copyright.
Ø Section 63(B)-Stipulates a minimum full term of 7 days, which can be extended up to 3 years
Internet Protection In India
The internet challenge for the protection of internet is the protection of intellectual property. It is still unclear as to how copyright law governs or will govern these materials (literary works, pictures and other creative works) as they appear on the internet.
Section 79 of the I.T. Act 2000 provides for the liability of I.S.P’s “Network Service Providers not to be liable in certain case.”
Section 79 of the I.T.Act exempts I.S.P’s from liability for third party information.
Indian Cyber Jurisdiction
Though it is the in nascent stage as of now, Jurisprudential development would become essential in the near future; as the internet and e-commerce shall shrink borders and merge geographical and territorial restrictions on jurisdiction. There are two dimensions to deal with.
(i) Manner in which foreign courts assume jurisdiction over the internet and relative issues
(ii) The consequences of decree passed by a foreign court.
The elaborate discussion in the foregoing chapters needs to culminate with the following recommendations: -
1. T.R.I.P.S Agreement, wherein computer programs qualify for copyright protection, needs to be adopted and implemented in letter and spirit by all the developed countries
2. Copyright, matters most in the computer software industry to off the shelf business applications sector in developing countries which presents two main problems that have to be closely monitored so that the copyright owners across the World will be protected.
(a) Stronger protection and enforcement could mean a more limited diffusion of technologies. Eg: governments and donor organisations should review their software procurement policies.
(b) National copyright laws need to be drafted appropriately.
3. Serious and sincere efforts are made for procurement of computer software. Since software license fees affect the total cost of an I.T system.
It would be sensible if the governments and donor organisations should certainly consider supporting programmes to raise awareness about low cost options, including open source software, in developing countries.
In view of the discussions herein the following conclusions are made: -
1. The boundariless nature of internet calls for a more encouraging relationships in other jurisdictions and close cooperation with the international organisations
2. There is an immense need for the society to be educated about the necessity of copyright protection in all fronts to prevent any unauthorized use and pilferage of the system.
3. The copyright law is the most potent instrument presently available for tackling I.P.R issues on the internet.
4. The analysis of copyright in cyberspace reveals a mixed result of new opportunities and threats. Such threats often outweigh the opportunities offered by the cyberspace and necessity arises for increasing regulations of cyberspace to protect copyrights.
5. Lack of internationally agreed principles relating to copyrights in cyberspace gives ample room for divergent domestic standards.
6. The following exceptions and limitations to the rights need to be reassessed
(i) Access controls ability to engage in fair use
(ii) Circumvention of access controls affect, value and works protected by copyright.
2. http://www.oznetlaw.net/fact sheets/database protection
4. See explanation (ii) of Sec.43 of I.T. Act, 2000
5. http://www.linfo.org/database.html (accessed on 23/10/2008)
6. Macmillan & Co. Ltd Vs Cooper, 1924; 40 TLR 186, Page No: 188
7. Jain, Pankaj & Rai, Pandey Sangeet CPT Laws, 2005 at Page No: 45
8. Declaration of W.I.P.O (Stockholm, July 14th, 1967)
9. Sec.106 (3) of the American Copyright Act, 1988
10. http://www.bitlaw.com/source/17usc/102.html, dated 08-08-2006
11. James M.Jordan III Copyright in an Electronic Age
12. Gimber (1998), IPL 50 Stan L. Rev 1671
13. http://www.copyright.gov/legislation/hr2281.pdf,dated 10-08-2006
14. Sec.1201 (a) (1) D.M.C.A 1998
15. Sec.1201 (a) (2) D.M.C.A 1998
16. Saha.Subhasis & Kesari Sourav, JIPR Vol.13, Jan 2008 at Page No: 35