1.1
GENERAL
INTRODUCTION:
Nature has gifted human beings
with mind and brain power which distinguishes them from other creatures of the
universe. The progress of human civilization eventually led to the discovery
and inventions of new ideas beginning from the need for survival to luxuries of
modern life. Now the time has arrived for the humankind who in their entire
lives were limited to a particular field to get intermixed themselves with
relation of technology, legal and sociological fields and link various fields
with the today’s dire need i.e., technology.
Technology may precisely
be defined as, the application of science or knowledge for any particular task
using a technical process. Thus, it is the human innovation in action that
involved generation of knowledge to extend human capabilities or satisfy emerging
human needs and wants. The invention of radio, television, super-computers
etc., and all other mechanisms are essentially the outcome of the science and
technological developments.
The need for protection of
such inventions has become prominent in the current society. Such a need given
rise to intangible rights, which we call it as Intellectual Property Rights.
1.2
WHAT
IS INTELLECTUAL PROPERTY?
Most often one thinks of property as either a movable property (e.g., a
radio or a coat) or immovable property (e.g., a house or a land). One characteristic
of these forms of property is their tangible existence. In comparison,
intellectual property law confers property rights on intangibles.
Intellectual property is that intangible property that is created as a
product of mental creativity & labour. It encompasses a wide range of such valuable
assets that can’t be protected by way of possession or by locking them up in a
locker. Intellectual property are the creations of the human mind, the human
intellect. That is why this kind of property is called “intellectual”
property.
The convention establishing the World intellectual Property Organization
(WIPO), concluded in Stockholm on Julu 14, 1967, provides that ‘intellectual
property’ shall include rights relating to:
(1)
literary,
artistic and scientific works;
(2)
performances
of performing artists, phonograms, and broadcasts;
(3)
inventions
in all fields of human endeavour;
(4)
scientific
discoveries;
(5)
industrial
designs;
(6)
trademarks,
services marks and commercial names and designations;
(7)
protection
against unfair competition;
and all other rights
resulting from intellectual activity in the industrial, scientific, literary or
artistic fields.”[1] However this list is not exhaustive. The
extent of copyright is growing as the works in various new fields are being
recognized which also include technological purview.
1.3
TECHNOLOGY
VIS A VIS CYBER SPACE:
Technology has had a vast impact on entire mankind and society as a
whole. Ever since mankind emerged on the globe from the stone age to the
industrial age, and now finally to the technological age, there has been no
looking back. Technology since then has grown in abundance and now moving
forward toward a brighter world.
N0w with the
growing use of technology in our day-to-day use, everything has changed. With
the advent of technologies like AI, Data automation, Virtual reality everything
has now been changed and modernized. This has come up with a new problem.
Technology which came earlier as the greatest tool for making has now become a
tool for malicious and ill-minded people. Misusing the technology using
computers and the internet with mens rea is said to commit a Cybercrime.
1.4
IPR
IN CYBER SPACE:
For the last two decades, the world is
facing a great malady which is called Cyber Crime. Attack of viruses in the
computer system, breaching of user date through a website, attack of hackers on
your private account or a public domain, or banking fraud all are include under
cybercrime. And now intellectual property right’s authors were also becoming
the victim of cybercrime.
Intellectual property rights and cyber space are two inseparable terms.
To go in-depth on the topic one needs to understand the concept of Intellectual
Property Rights. Cyber space is nothing but Information and Communication
Technology (ICT) and cyber laws deal with the issues regarding the protection
of innovation (essentially copyrights and trademarks), Cyber Security, and the
free exchange of thoughts and ideas without any piracy and no threat to the privacy.
Three major heads of IP Law cover all other Intellectual property Rights either
directly or indirectly.
They are
as follows
· Patent
· Copyright
· Trademark
Apart from special
statutory provisions and treaties framed in order to protect Intellectual Property
Rights all over the world; there are variety of legal principles embedded in
the common law and also other criminal and civil statutory provisions that
grant protection to the IP work much before the existence of these special IP
statutory Provisions which includes Cyber Law.
COPYRIGHTS
IN CYBERSPACE
2.1
INTRODUCTION:
Only human beings are capable of creativity. They can be authors,
composers, artists and designers for creating their original works. Generally,
it is they alone, who will be entitled to enjoy exclusive rights to do or
authorize others to do certain acts in relation to
i)
Literary,
dramatic, musical, and artistic works;
ii)
Cinematograph
film; and
iii)
Sound
recording (programs);
However, this list is not exhaustive and
includes even computer software also.
2.2 COPYRIGHT:
Copyright is unique kind of intellectual
property the importance of which is increasing day by day. It doesn’t fall
under the category of industrial property. Usually, the design of an article
may be protected as an industrial design while copyright protection may apply
to the graphical or pictorial features on the object.
The right which a person acquires
in a work which is the result of his intellectual labour is called his
copyrights. The primary function of a copyright law is to protect the fruits of
a man’s work, labour and skill. The law of copyrights has to protect a man’s
copyrights irrespective of his status as a family man or saint.[1] In fact ‘copyright’ was the first intellectual
property which received legal recognition in the world.
However, copyright is
not a perpetual right. It exists for a specific term. After the expiry of the
term the work falls in public domain and is open to public to use without
permission of the owner.
2.3
REQUIREMENTS:
To qualify for
copyright protection, a work must be original
· Originality relates to the
expression of thought and not to the underlying the idea or thought.[2]
· Essentially, originality refers the
fact that the work was independently created and was not copies from somewhere
else.[3]
· Works enjoy copyright protection
irrespective of their creative elements, quality or value and do not need to
have any literary or artistic merit.
· Needs to be fixed in material form.
· Copyright does not protect facts –
whether scientific, historical, biographical, or news of the day.
· Only how such facts are expressed,
selected or arranged are protected.
· Others are free to use the facts as
long as they do not copy how the facts are expressed.
· Non-registration does not affect copyright
- The Indian
copyright law doesn’t make the registration of copyright in a work, a sine qua
non.[4]
· Copyright is not an actionable
claim. The owner of the property has the actual or constructive possession of
the same.
2.4 OBJECT OF THE COPYRIGHT ACT:
The hall mark of any culture is the excellence of arts and literature.
In fact, the quality of creative genius of artists and authors determine the
maturity and vitality of any culture. Any art needs healthy environment and
sufficient protection. What the law offers is not the protection of the artist
or the author alone. Enrichment of culture, is of vital interest to each
society and the copyright law protects this social interest.[5]
The Copyright Act has been enacted to check the piracy i.e., the infringement
of rights under the copyright Act so that the fruits of the labour put by the
author or the owner may be enjoyed by the deserving authors and copyright
owners and not the pirates, who indulge in plagiarism and other undesirable and
illegal activities of the theft of intellectual property.[6]
1. Scheme of the copyright Act:
The Copyright Act, 1957 is the primary legislation dealing with the
protection of copyright in India. It contains 79 sections and is supplemented
by the Copyright Rules of 1958. The Act defines various terms like Artistic
work, Author, Adaptation, Broadcast, Cinematograph film, Computer program,
Copyright society, Dramatic work, Exclusive License, Indian work, Infringing
copy, Literary work, Musical work, Performance, and sound recording in the
definition clause contained in Section 2 of the Act.
Apart from dealing with the copyright, its meaning, ownership of
copyright, rights of the copyright owners, term of copyright, its registration,
the Act deals with the other aspects like licenses by owners of organization
rights. The Act provides for a comprehensive scheme to deal with the
infringement of copyright and civil remedies for the same.
Section 14 of the Act gives a comprehensive definition of the term “Copyright”.
The basic features of the
copyright Act. 1957, confirm to the provision to the provisions of the two
international conventions on copyright, namely –
-
The
berne convention and
-
The
universal copyright convention.
India is a
member of both the conventions, which were revised at Paris 1971.
2. 1999 Amendment:
The
copyright Act which was amended in 1999, amended definition of ‘literary
work’, meaning of copyright in respect of a computer program and
increased the term of copyright of performers from 25 to 50 years.
3. 2012 Amendment:
The two International Treaties were negotiated in 1996 under the
auspices of the World Intellectual Property Organization (WIPO). The two
treaties are called the ‘WIPO Copyrights Treaty (WCT)” and the “WIPO
Performances and Phonograms Treaty (WPPT)’’. These treaties were negotiated
essentially to provide for protection of the rights of copyright holders,
performers and producers of phonograms in the Internet and digital era.
Though India is not a member of these treaties; Amendment have been made to
make Act in compliance with the treaties in order to provide protection to
copyright in the digital era.
2.5 COPYRIGHT
PROTECTION IN CYBERSPACE:
History demonstrates that Copyright law is the most affected one with
the introduction of new technologies. The more technological advancements, the
more threats to Copyrights in Cyberspace. Copyright is one of the most
important kinds of intellectual property rights, technology and the internet
have had a big effect on it. The internet is unavoidable in various aspects of
life, including business operation and giving up on cyberspace cannot be an
option to deal with copyright problems.
Copyright
enforcement in cyberspace is hampered by the usage of computers, and the
internet. Including downloading, uploading, copy-cut-paste, deep linking, and
peer-to-peer file sharing. The fundamental principles of copyright law are
constantly challenged in the digital context by copyright work protection. Law
is response to a problem, whether it is social, economic or technological. This
general rule also applies to copyright law.
Because of its ease of transmission from creator to viewer, and then
from viewer to viewer, the Internet is an ideal medium for artists and authors
to advertise their work. At the same time, technology allows any of these
viewers to edit, alter, distort, or disseminate an original work quickly and
readily without the author’s permission.
It was rightly stated in the
case of, Religious technology centre vs. Netcom Online Communication
Services Inc.,[7]
that because of the internet, piracy is much more of a silent and private
activity than it is in a bookstore. Since the Internet has reached PCs and even
mobile phones, preventing such infringements has become increasingly
challenging. Authors of copyrighted materials on the internet encounter several
hurdles. Internet policing is at the top of the priority list. According to the
Copyright Act, infringement happens-
1)
when someone uses another’s copyrighted work
without permission.
2)
Allows the illegal use of another’s copyrighted
work with knowledge;
3)
Makes a profit from an activity that involves
the use of another’s property as well as
4)
Makes use of any of the copyright that are only
available to the copyright owner.
Thus, a
copyright is only infringed when someone else conducts any of the countless
actions that the copyright owner has exclusive rights to, such as producing the
work in any tangible form, including storing it in any medium via technological
means. Digitalizing a work without the permission of the copyright owner is an
infringement. The internet is a global system for sending and copying
information. This makes it possible for copyright to be distributed in ways
that no one could have thought of before and poses several problems for
copyright law.
Digital storage is dense, and
it’s getting denser every year. Increasingly large amounts of material can be
stored in a decreasing quantity of space.
1. Current Issues:
Since the emergence of the internet and the development of related
information technologies copyright breaches have been rampant. Copyright
violations are widespread in cyberspace and damage a variety of digital items.
The emergence and wide spread of the internet have resulted in the creation of
cyberspace, an unruly and anarchic realm that poses grave challenges to
copyrights. Copyright owners have made technical protections like the
Electronic Copyright Management System (ECMS) to stop works from being copied
and spread.
2. Copyright violation:
a.
Caching.
Caching
means temporary copying. Determining the line between private and public use is
one of the most basic copyright issues on the internet. The Indian Copyright
Act. 1957 distinguishes between reproduction for the public use and
reproduction that can only be done with the permission of the right-holder. The
right to reproduce on the internet raises some fundamental issues. Because of
the fundamental nature of the internet transmission, this is the case. Every stage of transmission involves
reproduction. Temporary copying is an important part of the internet
transmission process without which messages would not be able to travel through
the networks and reach their intended destinations.
b.
Plagiarism:
Plagiarism is the representation of another person's language, thoughts,
ideas, or expressions as one's own original work. Copying the copyrighted
content has become much easier because of technological advancements. As a
result, copyright infringement has been difficult to control. Books, movies,
films, and music can all be easily reproduced, and thousands of copies can be
generated and distributed. Digital technology has made it possible to copy
content from one site, edit it, or simply reproduce it.
c.
Illegal use of database:
Under Section 2(o) of the Indian
Copyright Act 1957, “Databases” are protected as “Literary Works.” For the
first time the in the Information Technology Act of 2000, the phrase “computer database” was defined. A person who
violates the copyright and online regulations can be fined up to one crore
rupee under Section 43 of the IT Act of
2000. Section 43 of the Act criminalises
a wide range of offences, including computer trespass, digital copying,
invasion of privacy, data theft, and so on. The IT Act of 2000, Section 66, also has criminal penalties for
this kind of thing.
d.
Illegal use 0f computer software:
A computer
programme is defined as a “collection of instructions represented in words,
codes, schemes, or any other form, including a machine-readable medium, capable
of enabling a computer to do a certain task or accomplish a particular result,”
according to section 2(ffc) of the
Copyright Act. The Copyright Act defined computer software as a “computer
programme.” Computer programmes now qualify for copyright protection, as well
as other types of Intellectual Property Rights Protection, under the T.R.I.P.S
(Trade- Related Aspects of Intellectual Property Rights) accord.
Under the Copyright Act, computer programmes are included in
the definition of literary work. The owner of computer software has a variety
of rights, including the ability to award software licenses.
3. Actions that need to be protected in Cyberspace:
a.
Uploading & downloading:
Copyright infringement occurs when someone uploads copyrighted content
without permission. The quality of illegally downloaded music, movies, and
video games low, and the act of illegal downl0ading or uploading without
authority is punishable under India’s Copyright Act. Even if no financial
benefit has been received, the individual who uploaded the content is responsible.
When an uploader uses his ingenuity to update, amend, or alter copyrighted
information, he assumes responsibility. Illegal downloading is most common in
the film, video, music, gaming, and software industries. Piracy is major issue
in India’s media and entertainment business, with annual losses of over $4
billion owing to copyright infringement. According to Justice Gautam Patel of
the Bombay High Court, only when a user prejudicially distributes, exhibits, or
lets for sale or hire copyrighted content without adequate authority does the
user commit an offence.
b.
Linking:
Today’s world is dominated by the internet. The website contains a
wealth of information in the form of words, pictures, graphics, audio and
video, among other things. As a result, the copyright law protects the website.
The site’s focus is on the electronic publication of content. Designing or
producing a website takes a lot of time, effort, money and thought.
Consequently, protecting a websites’ content information from infringement is
critical. Linking allows users to quickly move from one site to another and
access information in a short amount of time. It informs people about the
existence of work by providing a simple website address.
Linking is feature that allows access to a third-party website by
clicking on a location on the linking site without having to enter any location
information or using a search engine. Links are usually highlighted underlined.
Or prominent texts or images. There are two types of linking:
1.
Surface linking:
Surface linking is when the site’s home page is linked.
2.
Deep linking:
Deep linking is when a link skips the home page and goes straight to an
internal page within a favourite website.
Only
when it comes to “Deep-linking,” which aids in the distribution of other
people’s creative material, do legal issue arise. Copyright infringement is
defined as duplicating, releasing, or communicating work to the public without
authority or permission. Deep linking sites are not directly accountable for
infringement because the reproduction of work is done by the user who visits
the linked page via the link, not by the linking site. Making any work
available for the public to see, hear or enjoy directly or through any means of
display is considered communication to the public under section 2(ff). The Copyright Act does not
expressly prohibit deep linking, but the term “by any means of display,” as
defined in Section 2(ff), includes
communication of website contents over the internet.
Communication of material without permission is considered a copyright
violation under Section 51. Deep linking
without the owner’s permission is considered copyright infringement.
Contributory Copyright Infringement occurs when someone creates a link that is
likely to promote unauthorised copying of copyrighted material, and the party
who created the link had reason to know about the unauthorised copying. Some
websites, such as Amazon.com, welcome linking or deep linking is a technique
for quickly accessing information. Deep linking without permission entails the
electronic publication of contents, copying, and communicating to the public
without permission, all of which constitute copyright infringement.
c.
Peer to Peer (P2P) file sharing
In general,
file sharing refers to the electronic sharing of digital files (music, audio
recordings, movies, television shows, games, and computer software, for
example). Peer-to-peer is a method of exchanging files without the use of a
middleman server. P2P technology was not designed to facilitate copyright
infringement, but it is increasingly being used to download illegally
copyrighted materials. Some P2P technologies, as Napster, Gnutella, and Kaza,
are well-known and allow users to share, transmit, and download files over the
internet without sacrificing such quality.
In India, anyone operating a
network similar to Napster is liable under Sections
14 and 51(a) (ii) of the Copyright Act, 1957. It resulted in the demise
of Napster and the emergence of better P2P networks. Any person who allows any
place to be used for public communication of the work where such communication
constitutes an infringement is liable for copyright infringement under Sec.51(a)(ii). The term 'any place' also
includes virtual locations.
Infringement occurs when someone
makes copies of a work or communicates the same work to the public, according
to Sec.14.
The individual who downloads a
copyrighted work file is reproducing the work without the permission of the
copyright owner. As a result, he has committed copyright infringement. In
short, P2P technology is a problem for the copyright sector, which includes the
music, sound recording, and software industries, because it lets protected
works be copied and shared over the internet.
4. Copyright Infringement on social media:
Not surprisingly, anything that
could be considered copyright infringement in general, when a work is used or
shared without the owner's permission is likely to be copyright infringement on
social media. One can post almost anything on Twitter, Facebook, Instagram,
Pinterest, and Tik Tok because they don't check posts for copyrighted material.
This opens the door to all kinds of copyright violations in the digital world.
Many people see social media
as a place where they can post whatever they want, but everyone needs to be
aware that copyright violations can still happen on social media. Even though
copyright is used in the digital world, it is still against the law and may be
against the platform's terms of service. One can report if someone is using
their content without their permission.
On the other hand, if one
uses content to improve the image of their brand, this could be a violation of
copyright, depending on where they got the content. Therefore, it's best to use
images that the individual took themself or that are in the public domain. This
will also keep the company from getting sued for copying someone else's work.
5.Remedies of violation of the copyright in
cyberspace:
When copyright is infringed, the owner of the copyright has the right to
sue for damages, injunctions, profit of accounts, and delivery of infringing
goods. Copyright holders whose rights have been violated can get their rights
back in a number of ways from Indian courts. One of these steps is to order
that all copies that don't follow the rules, even master copies, be taken away
and destroyed.
Copyright holders can also get monetary compensation from the courts.
This can come in the form of monetary damages, statutory damages, court costs,
and attorney fees. The Copyright Act of 1957 gives three options for what to do
if someone breaks the rights of others:
1. Civil Remedies (Sections 54-62),
2. Criminal Remedies (Sections 63 and 63B), and
3. Administrative Remedies.
The Act gives the person who has been wronged the following legal
options:
1. Injunction
2. Damages
3. Account Conversion
4. Restrictions
5. Destruction of Infringing Copies
When
Copyrighted contents are used without permission, the owner of the copyright
has a number of options for civil remedies. He has the right to sue the person
who broke his rights and ask for monetary damages. Damages for infringement are
mostly based on how much the value of the copyright has dropped because of the
infringement. Damages for conversion, on the other hand, are directly related
to how much money the person who did the infringement made since the infringing
copies are made by the copyright owner's property. Civil remedies are meant to
make up for the loss that the copyright owner has suffered because of the
infringement.
6. Challenges faced in making laws for
copyright protection in cyberspace:
a. Intermediary liability
When
it comes to enforcing liability, it's critical to determine who is responsible:
the party that gets the work, the Internet service provider, or the person who
transmits the work. There is no responsibility under Section 79 of the Information Technology Act of
2000 if the subscriber establishes that the breach or crime was committed
without the knowledge of a person or that a person had exercised all reasonable
diligence to prevent the commission of such breach or offence. To hold an Internet
Service Provider (ISP) liable for the infringement or aiding in the
infringement of another's copyright, the ISP must have knowledge of the
infringement; otherwise, the ISP is immune from prosecution.
As the
Internet is a worldwide phenomenon, a person will only be held accountable if
any action on the internet is considered a crime under their respective local
legislation, making it extremely difficult to govern, as the message would
transit through several nations before reaching its intended recipient. As a
result, the ISP may not be liable in the country of destination or origin but
may be found liable in a transit country. Secondary liability theories of
contributory or vicarious infringement make software creators potentially
accountable for copyright infringement. A provider must either directly violate
copyright or indirectly violate the copyright in some way, such as by
contributing to or being a party to a violation.
The
Delhi High Court held in Super Cassettes Industries Ltd v. Myspace Inc and
Another[8]. that the
provisions of section 79 of the Act had
no effect on copyright infringements relating to internet wrongs where
intermediaries are involved, and that the same provision, Section 81 of the IT Act, had no effect. As a
result, even though an intermediary is protected under Section 79 of the Information Technology Act,
the copyright owner may still sue the intermediary under the Copyright Act of
1957. Even though the Information Technology Act of 2000 doesn't talk about
copyright or anything else related to intellectual property rights, it does try
to control how intellectual property is shared.
b. Jurisdictional issues:
In India, the laws do not shed enough light
on Internet jurisdiction. A court's decision is useless and has no meaning if
it doesn't have the power to make it. There are two types of jurisdictions:
subject matter jurisdiction and personal jurisdiction. For a judgement to be
made, these two things must be true at the same time. Without this authority, a
court's decision would be questionable, to put it mildly. It doesn't help much
or at all. It has been thought for a long time that jurisdiction is based on
either where the defendant lives or where the cause of action happened. But it
is said that this is not true for transactions on the Internet. It's not easy
to prove that either of the two places is the right one. It has been thought
for a long time that jurisdiction is based on either where the defendant lives
or where the cause of action happened.
c.
Evidentiary challenges:
There are a lot of
problems with how proof works on the Internet. Computers that can easily copy
digital information aren't that expensive compared to the equipment needed to
make a lot of physical copies of tapes and discs. This makes it very hard to get
proof from the end-user of copyright violations on the Internet. Because of
this, there is a lot of piracy. Also, it is hard to find the person who
downloaded content that was protected by intellectual property rights and then
made copies of it to sell. Copyright violations on the internet are hard to
catch because, unlike in the real world, they happen behind closed doors in
cyberspace. Section 64 of the Copyright
Act says that the police can take action against copyright infringement even
without a Magistrate's order. However, they don't do so, either because they
don't know how to prosecute these crimes or because they don't care about them.
Making laws for
cyberspace is challenging due to its global, borderless nature, rapid
technological advancements, and the difficulty in establishing clear
jurisdictions and enforcing laws across international boundaries. The
jurisdictional challenges in cyberspace arise from the borderless nature of the
internet, making it difficult to determine where a cybercrime originated or
where its effects are most strongly felt, leading to conflicts between
jurisdictions and requiring international cooperation to establish frameworks
for sharing information and evidence.
******************
[1]
Sulamangalam R. Jayalakshmi vs. Meta Musicals,
2001 (1) RAJ 150
[2]
Gopal Das vs. Jaganath Prasad,
AIR 1938 All. 266
[3] Macmillian Co. Ltd vs K&J
Cooper, AIR 1974 PC 75 P83.
[4]
Mishra Bandhu Karyalaya vs
Shivratan Lal koshal, AIR 1976 MP 261
[5]
Manu Bhandari vs kala vikas
pictures Pvt. Ltd., AIR 1987 Delhi. 13
[6]
Girish Gandhi vs. Union of
India, AIR 1997 Raj 78 at P.84
[7]
Religious Tech. Center v. Netcom On-Line Comm., 907 F. Supp. 1361 (N.D. Cal.
1995)
[8]
super cassettes industries ltd. v. myspace inc. 2011 (48) ptc 49
