INTELLECTUAL PROPERTY LAW(LW 6346)

INTRODUCTION

Information technology is growing in faster pace unlike any other means of communication. Invention of digital technology is the major invention of mankind. The internet has come as a boon for the society. Medium size business and small enterprises are pivot on the increasing demand of internet. Internet has become a source of promotion and show case of products and services. At present scenario internet is lifeline for each and every individual around.

The touchscreen age today knows very well the importance of software, multimedia, trademarks, artwork and icons. The mobile phones have become smart phones and tablets have over ruled computers.

COPYRIGHT AND CYBERSPACE

Copyright

Copyright is an exclusive right granted to the creators and producers of artistic, literary, musical and cinematographic works by law. The main function of this right is to protect the skill and labour of artists from being copied by others. The court has shown very little sympathy for plagiarists, and have frequent;y showed that copyright law out to be interpreted in such a manner so as to protect the interest of the copyright owner.[1] Although copyright originally protected only the written word it has subsequently been extended to cover artistic and visual works together with rights in respect of the performance of works.[2]

On granting exclusive statutory rights to the copyright holder, copyright also protects the interest of the society. Firstly, limiting the duration of work on which copyright protection is allowed and secondly, allowing ‘fair use’ provisions without the specific authorization of copyright owners in the parlance of copyright.

Cyberspace

Cyberspace is a virtual computer world. It is made up of many worldwide computer networks in aid of communication and exchange of data. It is an interactive and virtual environment  for a broad range of participants.[1]

The term ‘cyberspace’ was first coined in 1982 by William Gibson, an American-Canadian author in a story published in Omni magazine. Later in his si-fi novel Neuromancer, Gibson described cyberspace as creation of a computer network in a world filled with artificial intelligent beings.

Cyberspace is a concept describing widespread, internet connected technology.

COPYRIGHT IN CYBERSPACE

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 in the copyright work and perform or display the work publicly. A separate distribution right is granted to the owner of copyright, to apportion copies of work to the public by sale or by transfer of ownership. Caching or mirroring is another problem that causes numerous copyright violations in relation to computer software on the internet.

COPYRIGHT INFRINGEMENT IN CYBERSPACE

When a work is copied without the consent of the copyright owner, then it is known as infringement of copyright. In case of infringement, the defendant constructs that plaintiff’s work is copied under the form of expression and not idea. Under Sec.2(ff) making any work available for being seen or heard or enjoyed by public directly or by any means of display amount to communication to the public. Copyright Act directly not ban deep linking but provision under above Sec.2(ff), the term‘by any means of display include communication of contents of web site on internet. Under Sec.51 communication of work without permission is amount to copyright infringement. It means making deep linking without permission of owner is amount to copyright infringement.[1] The use of computer, internet and downloading, uploading, copy-cut-paste, deep linking, peer to peer file sharing create obstacle in the enforcement of copyright in cyberspace. Piracy is a big problem for India’s media and entertainment industry, causing losses of about US $4 billion every year due to ti copyright infringement.[2]

The WIPO Internet Treaties

The WIPO in 1996 adopted the „WIPO internet treaties‟ (WIPO Copyright Treaty-WCT and WIPO Performances and Phonogram Treaty-WPPT). During the Diplomatic Conference, the issue of unauthorised communication over the internet was intensely debated. The ultimate result was that the treaties are essentially neutral on the subject, with the issue of liability left to the national legislation to determine.5.1 A need was felt to update copyright laws because of the exigencies of the digital medium. The concerted effort of the international community to respond to the challenges of digital technologies took place under the World Intellectual Property Organization (WIPO). WIPO organized a Diplomatic  conference in December 1996 and comcluded two new treaties, namely, the WIPO Copyright  Treaty (WCT) and the WIPO Performance and Phonograms Treaty (WPPT). These treaties were popularly known as Internet treaties as they are intended to address the issues of copyright protection on the internet. Clarification on the existing provisions in the Berne Convention and in the Rome Convention, allowing new interpretations to the existing provisions by widening their scope and addition to new provisions on rights and obligations so as to cope up with the creation,adoption, transmission and distribution of works in the digital medium are the three main issues addressed by WCT and WPPT.

COPYRIGHT VIOLATIONS

Copying material without permission of the copyright owner is copyright violation. Such infringement is done from the sources that are not public domain or compatibly licensed.

Copying of code

According to Section 2 (o) of the Copyright Act, 1957 the literary work includes “computer programmes, tables and compilations including computer databases”. Computer programmes has been defined under Section 2 (ffc) of the Copyright Act as “a set of instructions expressed in words, codes, schemes or in any form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.” In India, the copyright for software lasts for the life of the author, plus sixty years, after the expiry of such period the work comes into public domain. In case of pseudonymous or anonymous work and work by public undertakings, the copyright lasts for sixty years from the date of publication.

The general concept of copyright says that the ideas cannot be protected under copyright law, but what is protected is the expression of idea. The expression of idea means the imitation of a prior work with minor changes will constitute violation of copyright law. Copyright law protects literal copying along with non-literal elements in software like the “structure, sequence and organization”.

Selling and distribution of pirated software

Selling or distribution of software or exceeding the terms of license granted to be published without the permission of the copyright owner, then the owner can file suit for infringement. A person can claim damages, injunctions, account of profits and other remedies conferred under copyright law. A person who knowingly infringes the work of the copyright owner shall be punishable with minimum imprisonment of six months and may extend to three years and with fine of minimum of fifty thousand rupees and may extend to two lakh rupees.

A federal jury in Chicago indicted 19 people on charge of internet piracy of copyrighted software, games and movies of worth more than US $6.5 million. The convicts illegally distributed newly released titles movies like “ The Incredibles” and “The Aviator” and games like “Tiger Woods PGA Tour 2005”. Each defendant was charged for copyright infringement which carries imprisonment of maximum five-years.

Database

Databases can be of two types – raw data and a database which is a complex software which raw data. Databases are protected under Section 2 (o) of the Copyright Act as literary work. It is mainly granted to those databases which features some degree of originality in compilation of facts. Databases are protected not because their creativity or innovation, but to recognize the labour invested in creation of the database. The data which is stored inside the database, may or may not have separate copyright protection. Moreover, copyright protection granted to a database, does not automatically grants copyright to the data inside it. The US Supreme Court, in Rural Telephone v Feist[1]laid down a three prong test to decide whether the compilation is original or not, firstly, there must be a collection of “pre-existing materials or data”, secondly the data must be “selected, coordinated, or arranged” in a particular way and thirdly the resultant work as a whole “constitutes an original work of authorship”.

In India in a case Eastern Book Company Desai, the Delhi High Court[2] have stated, referring to the Feist case, that there must some “modicum of creativity” in arrangement and compilation of the information to meet the criteria of originality and to avail copyright protection. In this case, the Court held that mere correction of typographical errors, addition of quotations does not meet the threshold of originality to be protected under laws of copyright.

Website Copyright law protects the design, images, content, source code and illustration used in a website individually. The trade dress protects the “look and feel” of the website including interactive elements and overall representation of the website. For the protection of website, a copyright notice must be provided at the bottom of the website.[1] The website have a detailed “terms of use” in the website, which states under which circumstances the material from the website can be used. There are some other modes of protection of website such as watermarking and using low-resolution website images, adding codes which automatically adds attribution link when images or text is copied, limiting access to particular areas of the website and limiting indexing of sub-pages by search engine bots, if it contains an image gallery. It is also advisable that if one is in a temperament of designing a website by a freelancer or any other agency, there should be a agreement which must contain a copyright assignment clause granting the individual the copyright of the website created.

Thumbnails

The thumbnails of images used under fair-use criteria i.e. for news, research, criticism or review of the work, etc. does not constitute the violation of copyright. The Courts in US under a case Perfect10 v Amazon[1] and Kelly v Arriba Soft Corp[2] have held that automatic indexing of the web-pages containing the images by a search engine and provide thumbnail versions of images in response to user inquiries is fair use.

LANDMARK CASES

Infringement over internet and piracy posing a threat to creative works worldwide and thus the growth of the internet, the e-commerce and the digital economy.[3] Copyright owners exclusive right of distribution applies to email attached or forwarded.

  1. In Play Boy Enterprise, Inc v. Frerna[4], defendant’s subscribers downloaded unauthorized photographs of playboy enterprises to a bulletin board system (BBS). US Court held that the plaintiffs exclusive right of distribution was infringed by customers of defendants. This creates an obligation on the BBS operators to ensure that its system is not being used to display and download copyrighted materials by its customers.
  • In Feist Publication v. Rural Telephone Service Co. Inc.[5], 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.
  • In MAl System Corp, v. Is Peak Computers Inc.[6], it was held that the temporary copies made into a computer RAM are copies. But in year 1995 in Religious Technology v. Netcom[7] US District court held that temporary copying involved in browsing is the functional equivalent of reading and does not implicate the copyright laws. So as regards browsing one must come to the conclusion that it does not amount to violation and can deceived to be a fair dealing.
  • In Sega Enterprises v. Maphia[8], the plaintiff manufactured video games which could only be played on game consoles manufactured by plaintiff. The defendant managed a BBS that enabled users to upload Sega games to his BBS which others could then download. The court took the view that defendant infringed plaintiff’s copyright as it caused or materially contributed to the infringement.
  • In Kelly v. Arriba SoftCorp[9], Leslie Kelly’s copyrighted pictures were displayed by a search engine that not only produced thumbnails but also displayed large size pictures in its search results. This was held by the court to be an unauthorized reproduction of plaintiff’s images that directly infringed copyright of the plaintiff. While creating only thumbnails could be justified as fair use, but downloading from search engine the resultant full size image amounted to an infringement.
  • In Microsoft Corporation v. Yogesh Popat[10], the Delhi High Court dealt with a copyright infringement case and awarded compensation to the tune of Rs 23.62 lacs to Microsoft Corporation against M/s Compton Computers Private ltd and its directors for uploading pirated software of Microsoft in computers that the company sold after assembling parts.
  • Viacom Int’l Inc. v. YouTube, Inc.[11] also famously known as the VIACOM Litigation. On March, 2010 VIACOM Inc. a major entertainment content company, who holds the major entertainment sectors brought down landmark litigation against GOOGLE, a famous search engine and YOUTUBE which is a subsidiary of GOOGLE. In the year 2007, episodes of SpongeBob Squarepants, shown on Nickelodeon (a subsidiary of Viacom Inc.) were displayed on YOUTUBE which is a video sharing site. Though there was a content- sharing agreement between Viacom and Youtube but negotiations broke down in 2007. Viacom’s allegations against Google and YouTube for direct and secondary infringement came as a result of the regular distribution and viewing by YouTube users of copyright-protected materials. In particular, Viacom alleged that tens of thousands of video clips sponsored on the YouTube platform infringed Viacom’s copyrights. The Second Circuit Court held Google and YouTube liable for the deliberate act and held them liable.
  • The Napster Case[12], whereby the plaintiff was sued by the defendants, for peer-2-peer file sharing. In this case, Napster provided software, whereby the user can share media files (MP3 Files) stored in his computer to other user of Napster. Since the filing of the Napster Inc. Case, the music companies have been seeking USD 1,00,000 for wach copyright protected song downloaded using Napster. There was a settlement between the parties, whereby Napster has to give a third of all future profits to the settling parties, and Napster Inc. was shut down in 2000.

LEGAL PROTECTION

Electronic Copyright Management Systems (ECMS)

ECMS is a legal framework used to protect against third parties. The copyright owner have an option to make use of the technology protection measures, that us deployed to enable copyright owners to track, manage or prevent copying of their digital work, such as digital watermarking system. If some alteration of the work is effected which cannot be visible to the naked eye, and surfer may be unable to change the alteration. This system allows the copyright owner to track and identify unauthorised copies made of the original work. Despite uncertainty from many observer ECMS have been the subject of a raft of legislative measures at international, national and regional level.[13]

Digital Millenium Copyright Act (DMCA), 1998

The act outlaws attempts to get around devices used by software publishers to keep their programs from being copied, but makes a number of exceptions. Non-profit uses, legitimate personal privacy concerns and law enforcement activity are few exceptions involved under this act. The act also provides that no person shall circumvent a technological protection measures that effectively controls access to a work protected under the Act. It 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 rights of a copyright owner. The act also takes Internet service providers off the hook for infringement for transient transmissions automatically passing through their computers. The act sometimes for exceptional cases allows a copy of a computer program to be made for the purpose of repairing or maintaining a computer.

Europe Union Copyright Directive

Many directives of EUCD[14] drafted closely to DMCA and follow the developments in US. Under this act there was ban on the act of circumvention which would in turn allow a wide ban on circumventing technologies. Circumvention of a technological measure in order to gain access to a work in the public domain might be permissible because the work is not protected by copyright, further, the circumvention of the technology can also be used without permission of the owner of the copyright. Thus, the focus here is also on protection of access to works, and is not limited to circumvention for infringing purposes.

CONCLUSION

Internet has helps people in many ways. It is the best and the fastest way to share your works with anyone worldwide. People have been using internet widely to gain popularity in a short span of time like youtubers, internet sensations, etc. But it is duty of the law authority to keep check that no one’s work gets infringed by anyone. With the arrival of digital technology, multimedia and internet copyright infringement and software piracy has become very easy. Hacking has become major problem and it is on its peak due to poor system of network security. Copyright is not meant to grant to its holders exclusive control of their works; rather, it is very specific bundle of rights designed to foster creativity for the public interest.The Indian Copyright Act only contains vague provisions to incorporate copyright protection in cyberspace, it does not make its stand clear. While the US laws have laid down clear guidelines for the benefit of the courts, the Indian law has completely left it to the judiciary to interpret the law as flexibly as possible to incorporate the changing scenario. This is why it has not been possible to reduce piracy rates in India despite mechanisms being developed by various institutions. The Electronic Copyright Management System (ECMS) has helped to some extent in protecting these works on the internet. But still stronger legislation are needed to stop these infringements. Stronger punishments and heavy penalties have to be imposed that no one commits such act in future.

BIBLIOGRAPHY

  1. P. Narayanan,INTELLECTUAL PROPERTY LAW, 3rd Edition, Eastern Law House, 2000
  2. Raman Mittal, Online copyright infringement liability of internet service providers, journal of the Indian law institute [vol. 46 : 2]
  3. Dr. Nehaluddin Ahmad; Copyright Protection in Cyberspace: A critical study with reference to Electronic Copyrigght Management Systems (ECMS); Communications of the IBIMA; Volume 7, 2009 ISSN:1943-7765
  4. S.Shushaanth and Aswathy Rajan; A study on Copyright Infringement in Cyberspace with Special Reference ot he Liability of the Internet Service Provider for Infringement; International Journal of Pure and Applied Mathematics; Volume 119 NO.17 2018, ISSN: 1314-3395; pp 1503-1516
  5. Hrishita Mukherjee; Copyright Protection in Cyberspace-A comparative Study of USA and India; International Journal of Science and Research (IJSR); Volume 5, ISSN:2319-7064; pp 1463-1468; www.ijsr.net
  6. Subhasis Saha and Sourav Keshari; Challenges to Copyright-able Work in Cyberspace; Journal of Intellectual Property Rights; Volume 13, pp 35-42
  7. Tabrez Ahmad; Copyright Infringement in Cyberspace and Network Security: A Threat to E-Commerce; Research Gate; https://www.researchgate.net/publication/228172339
  8. Indrajit Mitra; Copyright in Cyberspace
  9. Karra Kameswara Rao (KARRA); Challenges of Copyright and Cyberspace; Legal Services India; http://www.legalserviceindia.com
  10. Karnika Seth; Protecting copyright in the cyberspace; https://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html
  11. www.mondaq.com
  12. http://www.legalserviceindia.com
  13. www.wikispaces.psu.edu.com
  14. www.casemine.com

Poonam Sarpal
Poonam Sarpal
LL.M Student
KIIT, School of Law
Batch 2019-2020