Apr 30, 2014 - Many of the images found on BBS included adult subject-matter ..... located in the Czech Republic which is a web hosting company and is one ...
"Challenges in the Protection of Copyright Due to Technological Innovations" ACKNOWLEDGEMENT I take this opportunity to sincerely thank the esteemed Director of the Institution, Dr.Shashikala Gurpur, Symbiosis Law School, Pune, for teaching the key concepts of research and building self-confidence in her students. I acknowledge with gratitude, the earnest, precious and enthusiastic support which I received from my Guide and Mentor, Dr. Rupal Rautdesai, Professor, SLS Pune, who with her vast knowledge and expertise in the area, has provided able guidance and encouragement at all possible junctures of my research without which this dissertation would not have been possible. My foremost reverence and gratitude are due to Mr. Brendan Guildea for permitting me to use his poem “the Ballad of Digital Pirate”. Special thanks to Dr. D.P. Singh, Professor at TATA Institute of Social Sciences, Mumbai, Dr. Yogesh Patil, Associate Professor and Head of Research and Publication and Innovation, SIU, and Dr. Durgambini Patel, University of Pune for enlightening me on how to conduct research. I thank each and every teaching and non-teaching staffs for always helping me during the time I needed their help and co-operation. Last but not the least, I owe thankfulness to my parents, sisters, friends and Mrs. A. Mahalakshmi for their immense love and support. Above all, I owe gratitude to Almighty Allah, for keeping me safe and healthy throughout my research period and my deep affection towards my grandmother and Mrs. Shanta Balkrishna Giri for always remembering me in their prayers.
Date:- 30th April, 2014 Place:- Pune, Maharashtra India.
Manzoor Elahi Laskar LL.M IV Semester, Roll No. 21 Symbiosis Law School, Pune
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LIST OF ABBREVIATIONS ACTA - Anti-Counterfeiting Trade Agreement BSA- Business Software Alliance CD- Compact Disc DVD- Digital Versatile Disc DNA - Deoxyribonucleic Acid DMCA - Digital Millennium Copyright Act GATT - General Agreement on Tariffs and Trade GDP- Gross Domestic Product IDC- International Data Corporation IIPA- International Intellectual Property Alliance IAMAI- Internet and Mobile Association of India IDC- International Data Corporation IFPI- International Federation of the Phonographic Industry IP - Internet Protocol ISO- International Standard Organization ISP- Internet Service Provider MPA- Motion Picture Association NASSCOM- National Association of Software and Services Companies NSP- Network Service Provider OCR- Optical Character Recognition OECD- Organization of Economic Co-operation and Development OSP- Online Service Provider RIAA- Recording Industry Association of America (iv)
SAM- Software Asset Management SOPA- Stop Online Piracy Act TCP - Transmission Control Protocol TPM- Trusted Platform Module TRIPs - Trade-Related Aspects of Intellectual Property Rights UCC- Universal Copyright Convention UNESCO- United Nations Educational, Scientific and Cultural Organization URL- Universal Resource Locator USA- United States of America USENET - United States Ers' Network USSFTA- United States Singapore Free Trade Agreement VCR – Videocassette recorder WCT - WIPO Copyright Treaty WPPT - WIPO Performances and Phonograms Treaty WTO – World Trade Organisation GMAC- Graduate Management Admission Council FICCI- Federation of Indian Chambers of Commerce and Industry
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LIST OF CONVENTIONS AND LEGISLATIONS 1. Berne Convention of 1886 2. Universal Copyright Convention, 1952 3. Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, 1995 4. WIPO Copyright Treaty (WCT), 1996 5. WIPO Performances and Phonograms Treaty (WPPT), 1996 6. U.S Copyright Act of 1976 7. Digital Millennium Copyright Act, 1998 8. India Copyright Act, 1957 9. Information Technology Act, 2000 10.Singapore Copyright Act 1987 11. Computer Misuse and Cybersecurity Act, 2007
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TABLE OF CASES 1. A&M Records, Inc. v. Napster, Inc. (Napster’s Case), 239 F.3d 1004
52
(9th Cir. 2001) 2. Disney Enterprises, Inc. v. Hotfile Corp. 798 F. Supp. 2d 1303 (S.D. Fla.
55
2011)
3. Graduate Management Admission Council v. Raju, 241 F.Supp.2d 589
97
(E.D. Va., 2003).
4. Kelly vs. Arriba Soft Corp 280 F.3d 934 (9th Cir. 2002)
57
5. Louis Galoob Toys, Inc. vs. Nintendo of America, Inc., 964 F.2d 965,
58
th
968 (9 Cir. 1992)
6. Mai System Corp. vs. Peak Computer 991 F.2d 511 (9th Cir.1993)
51
7. Marobie-Fl. Inc. vs. National Association of Fire Equip. Distributors,
58
45 U.S.P.Q.2d 1236 (N.D. Ill. 1997).
8. Microsoft Corporation vs Mr Yogesh Papat and Anr., 118 (2005) DLT
51
580, 2005 (30) PTC 245 Del
9. Parker v. Google, 422 F. Supp. 2d 492 (E.D. Pa. 2006), aff’d, 2007 U.S.
54
App. LEXIS 16370 (3d Cir. July 10, 2007).
10. Playboy Enterprises Inc. vs. Frena, 839 F. Supp. 1552 (M.D.Fla.1993)
58
11. Playboy Enterprises, Inc. v. Hardenburgh, 982 F. Supp. 503 (N.D. Ohio
57
1997).
12. Playboy Enterprises, Inc. v. Webbworld, Inc., 45 U.S.P.Q.2d 1641 (N.D.
57
Tex. 1997).
13. Religious Technology Center v. Netcom On-Line Communication
47
Services 07 F. Supp. 1361, 1367 & n.10 (N.D. Cal. 1995) 14. Sony v. Universal Studios, 464 U.S. 417 (1984).
50
15. UMG Recordings, Inc. v. MP3.com, Inc. (MP3.com case) No. 00 Civ.
53
0472 (S.D.N.Y. Jan. 21, 2000).
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TABLE OF CONTENTS Executive Summary
12
Chapter 1 – Copyright and Digital Piracy
13-30
Summary
13
The Ballad of a Digital Pirate
14
1.1 Overview
15
1.2 Literature Review
22
1.3 Objective of Research
27
1.4 Significance
27
1.5 Hypothesis or Researchable Questions
28
1.6 Scope of Research and Limitations
28
1.7 Scope for Further Research
28
1.8 Plan of Work and Methodology
29
1.9 Source
29
1.10 Scheme of Study
29
1.11 Referencing Style
30
Chapter 2 – Evolution of Copyright Laws in response to Technological Advancement
31-41
Summary
31
2.1 Introduction
32
2.2 Brief Overview of Multilateral Treaties and Conventions
32
2.3 Legislations for Protection of Digital Piracy
37
2.3.1 USA:- Copyright Act and the DMCA
37
2.3.2 Singapore:- Copyright Law
38
2.3.3 India:- Copyright Act and Information Technology Act
39
2.5 Conclusion
41 (viii)
Chapter 3 - Infringement of Copyright by Digitalisation and Internet 42-63 Summary
42
3.1 Introduction
43
3.2 Internet and digital technology as a medium of Copyright Violations
43
1. Photocopying
44
2. Printing
45
3. Scanning
45
4. E-mail
46
5. Networking
46
6. File Sharing
47
7. Camcording
47
9. Ripping
47
8. Linking
48
10. Framing
49
3.3 Types of Copyright Infringement
49
1. Direct Infringement
50
2. Contributory Infringement
51
3. Vicarious Infringement
52
3.4 Threats posed on Copyright by Digitalisation and Internet
53
1. Right of Storage
54
2. Reproduction Right
55
3. Display right
60
4. Distribution Right
61
5. Right to prepare derivative works
61
3.5 Case Summary and Analysis
62
3.6 Conclusion
63
Chapter 4 – Impact of Digital Piracy on Economy and Employment
64-84
Summary
64
4.1 Introduction
65
4.2 Areas of Piracy and Its Impact on Economy and Employment
67
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4.2.1 US
Market
69
4.3.1.1 Music Industry
70
4.3.1.2 Cinematographic Films
70
4.2.1.3 Computer Software and Games
70
4.2.2 Singapore Market
71
4.2.2.1 Music Industry
71
4.2.2.2 Cinematographic Films
72
4.2.2.3 Computer Programs and Games
72
4.2.2.4 Books and Journals
73
4.2.3 Indian Market
73
4.2.3.1 Music Industry
74
4.2.3.2 Cinematographic Films
76
4.2.3.3 Computer Programs and Games
76
4.2.3.4 Books and Journals
77
4.3 Survey carried out by Researcher
78
4.4 Conclusion
83
Chapter 5 – Enforcement and Challenges
85-101
Summary
85
5.1 Introduction
86
5.2 Enforcement of Copyright Laws
86
5.3.1 Enforcement in United States of America
86
5.3.2 Enforcement in India
87
5.3.3 Enforcement in Singapore
90
5.3 Initiatives taken by USA
91
5.4 Initiatives taken by India
93
5.5 Initiatives taken by Singapore
95
5.6 Challenges in Enforcement
95
5.7 Fair use and the provision of Safe Harbour
98
5.8 Conclusion
100 (x)
Chapter 6 – Conclusion, Recommendation and Suggestion
102-116
Summary
102
6.1 Conclusion
103
6.2 Suggestions and Recommendations
109
Appendix 1. Questionnaire
117
2. List of People and their remarks
120
3. Due Diligence to be observed by intermediaries
122
Bibliography
A-E
Glossary
F-G
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Executive Summary This Research paper addresses the issues raised by the intersection between copyright law and technological innovation, more specifically by digitalization and internet. These developments have sparked public debate on the risks and harm that digitization have created for authors, publishers, libraries, technology companies, the general public, and the corresponding legal framework. Though there exists laws for the protection of copyright, yet the extent they have been able to serve the interest of copyright holders has become an issue in present scenario. The issues are many, such as what legislators can do to enforce proper implementation of copyright laws in a digitalized environment, how to control the free flow of digitalized pirated copyright contents over the internet, whether the technology alone can provide safeguard to copyright violation due to digitalization and internet, whether an international treaty is required to harmonise the copyright laws particularly with regard to online copyright violations, what steps the copyright owner should take to prevent their works from unauthorized production and distribution, how to incorporate change in the perspective of the society in relation to copyright violations. It discusses the evil impact of copyright on the employment and economy of a country and the loss that government and copyright industries have to suffer due to rampant piracy spreading every corner of the globe through the medium of internet. It also highlights the challenges faced by the enforcement agencies in the enforcement of copyright laws. Furthermore, it discusses the initiatives taken by different governments on their national legislations plus the initiatives taken by the copyright owners. Lastly, the researcher discusses what may or can be possible solutions for protection of copyright in a digitalized environment.
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CHAPTER 1 Copyright and Digital Piracy
Summary:This chapter provides an overview of copyright and digital piracy. It discusses the need for copyright protection and the challenges that has been faced in the protection of copyright. It also suggests the importance of copyright laws for the economic growth of a country. It depicts how piracy can hamper the economy of a country, making people unemployed or hindering in the process of creating new job avenues. It highlights the loss in tax revenue that government faces due to piracy. Lastly, the chapter discusses the literatures that are reviewed by the researcher, significance of the research and its scope, the methodology used to conduct the research, the questions that the researcher sought to find out through the research and the scheme of study.
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The Ballad of a Digital Pirate1 I am everywhere I am nowhere I live behind a series Of zeros and ones, which – If you manage to discover And decrypt in time – will only Lead you to the end of a line. My spoils are free My friends are many My long neck lies bare On any laptop, phone or pad Possessed of the hitherto Oppressed throng of Culture lovers. You can try to catch me You can try to detain me You can try to sever The innumerable connections Made fast in the vast chasm Of cyberspace while You were laughing. But it’s far too late and I’m far too great. My digital revolution has already taken flight With too many moving parts for you to stop the happening Of a crew long turned mutinous while you were napping. So… I’ll dive through the law I’ll bound down the wires I’ll sink your formerly glorious prospects All for fun; and in the memory Of my forbears who you made tread On rotten boards through ferocious seas …And we’ll soon see how well you swim! Brendan Guildea, Digital Copyright Enforcement versus Online Piracy, 2010. Available at: http://s3.amazonaws.com/academia.edu.documents/31617402/Digital_Copyright_Enforcement_versus_ Online_Piracy_in_2010libre.pdf?AWSAccessKeyId=AKIAJ56TQJRTWSMTNPEA&Expires=1398716525&Signature=KI8oR4P8zn34BI 8JxN1P08uizAw%3D; last accessed on 10.01.2014 1
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1.1Overview Intellectual Property is a valuable asset; although it exists mainly in the form of an intangible form. In present days, much of a nation’s economic growth are influenced by it. An intellectual asset is a creation of the mind and includes inventions, artistic works, literary works, logos, trade names, trade secrets, designs, etc. These intellectual assets have great significance in commerce and provides distinct competitive advantage over business rivals. Because of their importance in the commerce and their role in nation-building, many countries have formally given these assets a legal status of a property provided they meet the legal criteria laid out under specific intellectual property laws. Once an intellectual asset is granted the protection under the specific laws and takes on the mantle of a tangible property, it takes on the same status as that of a tangible property such as machinery, goods and real estate.2 Hence, it is the property which is the result of one’s hard labour and skill and is ultimately being protected by the relevant statues to provide incentive to others as well as to make the person benefit out of it who is the owner of such property. Copyright is a form of intellectual property since this right is conferred to copyright holder for his effort and utilization of his intellect over a work or a product. It is an intangible, incorporeal right granted by the statue to the copyright holder for his work, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and or publishing or selling them. Basically, for a copyright there should be a work and not a mere idea. Ideas do not have any copyright protection. To claim copyright protection, the work should be in the material form which involves the ideas translated. Once a work is created, the copyright owner gets the monopoly right to sell, distribute, modify, make adaptations and translation, rent out or assign. The term ‘work’ includes original musical, literary, artistic and dramatic works. It also includes sound recordings and cinematographic films. This is the exclusive right of the owner and no person can interfere with this exclusive right conferred on the owner by the statue, and any act to do any of the above acts without the permission of the copyright owner leads to copyright infringement. It basically protects the original or unique works of a person regardless of the medium in which it exists and this include Internet too.
Sunita K. Sreedharan, An Introduction to Intellectual Asset Management, Wolters Kluwer (India) Pvt Ltd, 2008; pp. 9 2
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Human creativity which fall within intellectual property domain are protected by copyright and related rights. As such it has fuelled in the growth of ecommerce. Under the most important international copyright convention, The Berne Convention, which is considered the most important piece of convention in international copyright covers all "literary and artistic works." This wide connotations covers all forms of writings, whether fictional or non-fictional, scientific theories, technical texts including source code and object code. It also accord protection to original databases, musical works; audio-visual works; works of fine art, including drawings and paintings; and photographs. On the other hand, related rights protects value added presentation of literary and artistic works contributed by people to the public: performers, the producers of phonograms and broadcasting organizations. The history of copyright can be traced back to Cathach, which is the oldest existing Irish manuscript of the Psalter. It is believed that the manuscript is of late 6 th or early 7th Century. It contains a Vulgate version of Psalms XXX (10) to CV (13) with an interpretative rubric or heading before each psalm. It is traditionally ascribed to St Columba as the copy, made at night in haste by a miraculous light, of a Psalter lent to Columba by St Finnian. A dispute arose about the ownership of the copy and King Diarmait Mac Cerbhaill pronounced the judgment stating to every cow belongs her calf, therefore to every book belongs its copy.3 However, the greater developments with regard to the Law relating to Copyright actually started with the invention of printing press by William Caxton back in 1476 in England. This revolutionized the whole printing business. Earlier to the invention of printing press, it was highly laborious process to create multiple copies. The scribes copied the works and in this way different copies could be made physically which were very susceptible to error. Printing allowed to make exact copies of the work comparatively within short period with no room for error. This helped in spreading knowledge, ideas and information to a large section of the public and could circulate rapidly. The British Crown passed a regulation mainly with two motives to establish control over printers. First motive was to suppress spreading of dissenting views and criticisms against the government by using the cheap and easy mode of printing and secondly for economic benefits. It required every publisher to have official licenses to trade and produce books. Later, the economic control of book publishing was transferred to Stationer’s Company. It exercised control over the English publishing trade. The grant to the Stationer’s served the Crown’s political interest as for the Stationers, it served their economic interest. Later, by the Royal Irish Academy, Sciences, Humanities and Social Sciences; Available at:http://www.ria.ie/Library/Special-Collections/Manuscripts/Cathach.aspx; last accessed on 20th January, 2014 3
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end of 1694, the Licensing Act expired and with that the Stationer’s power crumbled with regard to seizing copies and destroying offending works. Thus, to save its interest, the Stationer’s started to urge for the rights of authors above the publishers forcing the parliament to make a law, and this led to the passing of Statue of Anne in 1710, which was the world’s first copyright act. At the beginning, USA did not follow the law of England. Till 1783 USA had no proper copyright legislation. Only, after 1783, a few of the writers raised their voice against the government for the enactment of copyright legislation. As a result, the first copyright legislation in United States was passed in the year 17904 by the Congress in lines with that of the Statue of Anne. It was known as the Act for “Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies”. It gave fourteen years of protection to the authors to print, re-print, or to publish their work which can again be renewed for another period of fourteen years.5 Copyright law in India evolved in three phases. It came into India when India was under the colonization of the British East India Company. The copyright enactment of 1847 provided for copyright protection to authors till lifetime plus seven years after their death. However, the total protection that is allowed to any work was limited to forty years. The provision of compulsory license was present ever since the first copyright legislation in India and the government had the authority to grant compulsory license of a work if the owner of the work did not allow for publication of a book after the death of the author. This was the first phase of copyright law in India. The second phase of copyright law was when the Indian legislature first time enacted the Copyright Law under the British governance in 1914. It brought criminal remedy for violation of copyright, but mostly the provision of the Copyright Law of 1914 were similar to the provision of the British Copyright Act of 1911. And lastly, the third phase of Copyright law began with the enactment of Copyright Law in 1957 in Independent India. It was designed to suit the requirements of the Berne Convention and later on various amendments were made to make it compatible with Universal Copyright Convention.
4
Act of May 31, 1790, ch.15, 1 Stat.124
See Paul Goldstein, International Copyright: Principles, Law and Practice; Oxford University Press, 2001; Page. 3-6 5
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Singapore’s culture and history have been subjected to the confluence of the combined cultures of China, India, Malaysia, Indonesia and the British, who colonized Singapore in 1819. The Copyright Act first came into Singapore during the colonization of the British in 1911. Singapore’s modern copyright law is passed in 1987 after its independence in 1965. The Copyright Act of 1987 is based on the Australian Copyright Laws. Singapore’s copyright laws are reasonably up-to-date, because of Singapore’s accession to international intellectual property treaties such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) in 1996, as well as Singapore’s implementation of its free trade agreement with the United States, the United States Singapore Free Trade Agreement (USSFTA).6 While the shape of copyright law has always been drawn by the developments in the technological world, the emergence of digital technologies towards the concluding decades of the twentieth century have raised a whole new set of copyright regimes. All works can now be digitalised whether they comprise texts, images, sound, animation, photograph and once digitalized the various elements are all equal and can be merged, transformed, manipulated or mixed to create an endless variety of new works. Earlier rights of reproduction and distribution were affected only tangible copies of a work, but now with the digital technologies, innumerous digital copies of a work can be made which is cheaper and hard to detect. The crucial features of digital technologies at the first place is the ease of replication, the ease with which the works in digital form can be replicated posing a difficult problem for the law to handle. In the existing copyright regime, there is a general proposition that making copies for personal or private use is considered fair use and lawful. In digital world, perfect copies can be generated by the high end technology. Hence it has become more difficult for the copyright owners to exercise control over replication of their works and to obtain compensation for unauthorized replication. The older technologies of photocopying and tapping allowed only mechanical copying by individual consumers, but in limited quantities, requiring considerable time and of a lower quality than the original. Moreover, the copies were physically located in the same place as the
Daniel SENG, International Study on the Impact of Copyright Law on Digital Preservation, WIPO International Workshop on Digital Preservation and Copyright; pp.1-6; Available at: http://www.wipo.int/edocs/mdocs/copyright/en/wipo_cr_wk_ge_08/wipo_cr_wk_ge_08_www_105895related1.pdf; last accessed on 20.01.2014 at 10.30a.m 6
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person making the copies. On the internet, in contrast, one can make an unlimited number of copies, virtually instantaneously, without any degradation of quality. Now a days, we see that Computers and Internet touches and influences almost all walks of our lives. We are living in information age and computers are the driving force. We hardly do any activity that is not in some way dependent on computers. From the moment we wake up, we interact with computers. Our house, the electricity we use, our transport, the water we drink, the food we eat, the appliances we use, the medicine we take, our hospital records, our banks, our entertainment are all dependent in some way or the other by computers. Computers are the basic machinery from which has burgeoned the Knowledhe Economy – an overused term which nonetheless convey something of remarkable transformation that has come about in industrial production, financial and commercial operations, government, international relations, education, leisure, and most other spheres of existence in developed countries today.7 Apart from their role in research and corporate world, the computers are playing a major role in the field of entertainment and education. By digitizing the audio and video information computers enable easy access to these files anywhere. Films can be transported to various locations very easily using CD’s or through the network. In the same way, images, audio files, documents and soft wares can be transported, uploaded or downloaded by converting them into binary forms. ‘Digital technology enables the transmission and use of all of these protected materials in digital form over interactive networks. The process of ‘digitization’ allows the conversion of such materials into binary form, which can be transmitted across the Internet, and then re-distributed, copied and stored in perfect digital form. While the transmission of text, sound, images and computer programs over the Internet is already commonplace, this is also becoming true for transmission of audiovisual works such as feature films, as the technical constraints of narrow bandwidth begin to disappear.’8 To store the multimedia file a large amount of storage devices are required. These days various high storage devices are available in the market and at a cheaper prices. CD’s, DVD’s, Blue-ray disks, hard disks, pen-drives, memory cards all have now capacity to store large William Cornish, David Llewelyn and Tanya Aplin; IntellectualProperty: Patents, Copyright, Trademarks and Allied Rights; Sweet and Maxweel, South Asian Edition, 7th Edition, 2010 7
Intellectual Property on the Internet: A Survey of Issues, WIPO/INT/02, Published on December,2002, http://www.wipo.int/export/sites/www/copyright/en/ecommerce/pdf/survey.pdf; Last accessed on 16/01/2014 at 10.00 am. 8
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amount of data. With the advancement of technology, now cloud based storage facilities are also available to users to store data which can be accessed from anywhere. Now with the advent of Quantum Computers9 and DNA Computing10, the level of computing along with the speed has reached almost to a new level. Hence, the development in digital technology and internet has posed a threat to copyright contents, as the materials are easily available and can be accessed from any part of the world. The technological measures to curb digital contents from being distributed freely also failed due to circumvention of digital technologies. Moreover, recent development in the field of digitalization like the OCR’s, scanners, video frame grabbers, rippers etc. has enabled to make virtual copies of a work endlessly, without distortion of quality and save them in any format. Digital technology has eased up the process of making digital copies in such a manner that any person without having any training in such field can make use of it. Moreover, the Internet has paved the way for distribution of such virtual copies either through hosting of such work through a website, or through more developed process of peer to peer file sharing mechanism. Now a days, it’s an easy task to upload or download a work since they are readily available or can be made with the least of an effort. There are many websites that permit uploading of video and audio files. Videocasting and podcasting are the order of the day. However, people are not only uploading their own videos and audio files, but are also uploading the films and music files that are copyright of others.11 As the horizon of Internet is increasing day by day, it has brought up a great hurdle for the protection of copyright. This is a characteristics of digital media that poses problems for traditional IPR system. These challenges are faced by the copyright industry at a time when the share of copyright in national economies is reaching unprecedented levels. The economic value of the copyright industry in the United States alone is estimated at US$91.2 billion (motion pictures, music and television), according to International Intellectual Property Alliance (IIPA). The share of copyright industries currently represents 5.24% of the U.S. gross domestic product,
A quantum computer is any device for computation that makes direct use of distinctively quantum mechanical phenomena, such as superposition and entanglement, to perform operations on data. 9
A DNA computing is a form of computing which uses DNA (deoxyribonucleic acids) biochemistry and molecular biology instead of traditional silicon based computer technologies. It is also known as biomolecular computing which is used to store information and perform complex calculations. 10
11
Yatindra Singh, Cyber Laws, Universal Law Publishing Co. Pvt. Ltd., 4th Edition, 2010
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growing more than twice as fast as the rest of the economy, a growth largely attributed to America's strong copyright laws and effective enforcement mechanisms. Similarly, a study of the copyright industries in the MERCOSUR countries reveals that the share of copyrightprotected activities in the value added of Uruguay was 6% in 1997, and of Brazil was 6.7% in 1998, accounting in the latter for 1.3 million jobs. This significance gives weight to the copyright industries' search for technical and legislative solutions to protect copyright from digital piracy.12 UK music industry estimates suggest that counterfeit CDs arouse by 150% in 2000 to a total of 2.9 million units. Piracy is estimated to have lost the music industry worldwide some $4 billion in the year 2000 alone, and have been cited as a major factor in the reported 7% fall in the world sales of recorded music.13 India’s Bollywood film industry, the largest producer of films in the world, is severely threatened by physical and online piracy. According to a 2008 report by the US India Business Council and Ernst & Young, the Indian film industry lost US $959 million in revenue and around 570,000 jobs due to piracy. Another report by the US-India Business Council and the US Chamber of Commerce’s Global Intellectual Property Centre reveals that losses to the industry from trade in illegal CDs, DVDs, music downloads and cable television account for 38% of potential sales or approximately US $4 billion. Furthermore, the annual International Data Corporation (IDC) and Business Software Alliance global software piracy study puts the rate of pirated software at 64%, representing a gross annual loss to the software industry of US $27 billion.14 According to studies commissioned by the Motion Picture Distributors’ Association (MPDA), the local office of the Hollywood Motion Picture Association (MPA), India is the fourth largest downloader of films after the US, the UK and Canada. In a report by internet company, Envisional, it was found that online piracy of film and television content in India is carried out primarily through file-sharing networks like BitTorrent and cyber lockers, or web-
12
Infra. Note 23
P. T. Augastine, Encyclopaedia of Cyber Crime: Combating Cyber Crime, Crescent Publishing Corporation, 2007; pp.11 13
“Fighting the crime of the 21st century”, FICCI (2012), last accessed on 6th January, 2014; available at: http://www.ficci.com/sector/5/Add_docs/WTR_36%20India%20CC.pdf.; last accessed on 4th February, 2014 14
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based file hosts such as RapidShare or HotFile; video streaming websites were less popular. 15 Illegal cam-recording on the day of film release in multiplexes/theatres further adds to the existing problem. It is therefore critical to adjust the legal system to respond to the new technological developments in an effective and appropriate way, and to do so quickly and continuously, because technologies and markets evolve rapidly. This will ensure the continued furtherance of the fundamental guiding principles of copyright and related rights, which remain constant to a large extent whatever may be the technology of the day: giving incentives to creators to produce and disseminate new creative materials; recognizing the importance of their contributions, by giving them reasonable control over the exploitation of those materials and allowing them to profit from them; providing appropriate balance for the public interest, particularly education, research and access to information; and thereby ultimately benefiting society, by promoting the development of culture, science, and the economy.
1.2Literature Review The literature available on the challenges in protection of copyright due to technological innovations are voluminous. The national and international scenario are to be studied along with the copyright conventions that evolved over the period to get a clear picture as how to meet the challenges put forth by the advancement of digital technology. As technology is constantly evolving and it will continue to evolve in the years to come, it is important to look not just in the present but the future. Although, the scope of the research is limited to the challenges to copyright protection in United States, Singapore and India, yet the researcher has selected these jurisdictions falling within the categories of both developed and developing countries so that a general proposition could be set out at the conclusion which could be implemented nationally and globally. Zakir Thomas16 discussed the Copyright Amendment Act, 2012 that was enacted by the Government of India bringing changes to the Copyright Act, 1957 which implemented the
“India major online film piracy hub”, Deccan Herald (2013), available at: http://www.deccanherald.com/content/41541/indiamajor-online-film-piracy.html.; last accessed on 1st March, 2014 15
Zakir Thomas; Overview of Changes to the Indian Copyright Law; Journal of Intellectual Property Rights (JIPR); Volume 17, July 2012, pp 324-334 16
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similar provisions of WCT and WPPT in the present copyright law of India. While introducing technological protection measures, the author discussed the law relating to fair use doctrine in the digital era by providing special fair use provisions. The author also narrated to a sufficient details the changes made in the Copyright Amendment Act. A brief rationale for the amendment was also culled out by the author from the Notes on Clauses of the Copyright Amendment Bill and from the Report of the Standing Committee of Parliament. Dr. J. S. Patil17, Professor and Dean, Department of Studies in Law, Gulbarga University, Gulbarga, while addressing the copyright piracy issues has stated that there are laws both nationally and internationally, but still they are not sufficient enough to curb copyright violations. He urged for stricter laws and compulsory registration in copyright laws. According to him, there should be a Registry carrying all the information regarding the registered copyrights and the licenses and other rights obtained on such copyrights by the service agencies. It is through such stringent measures that the piracy of copyright can be brought under control. However, he did not provide any solutions as how to deal effectively with copyright piracy over the internet. Again, Dr. R. K. Chaubey (2008)18 in his book observed that ‘piracy limits the creator’s ability to be competitive, leading to higher–priced, less advanced products for customers.’ He essentially dealt with software piracy and how the new technological developments in the field of computers are going to create a bigger problem in years to come. Ayyappan Palanissamy19 argued that software piracy is very rampant due to technological innovations. It has been very difficult for the copyright owners to curb unauthorised distribution of softwares. According to him although there are both civil and criminal remedies available for copyright infringement, yet, in case of violation of copyright works the quantum of compensation awarded by the Courts are uncertain. He believes that a fixed amount of damages are to be given for copyright violations. This fixed amount of compensation should be statutorily fixed by the legislature in the copyright legislation. Patil Jaiprakashreddy, Piracy of Copyright, (Feb.7, 2013) http://www.lawyersclubindia.com/articles/Piracy-of-Copyright-5301.asp, visited on 17/01/2014 at 4pm 17
18
Dr. R. K. Chaubey, An Introduction to Cyber Crime and Cyber Law, Kamal Law House, 2008; pp. 31-37
Ayyappan Palanissamy, The Future of Copyright in India – A Special reference to software piracy, its challenges and proposal for reform, International Conference on Software and Computer Applications, 2011 IPCSIT vol.9 (2011) IACSIT Press, Singapore 19
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Punishments prescribed under the Copyright Act are mostly on par with other developed countries but as far as enforcement part, he states that establishment of special enforcement units in all parts of major cities have been a great effort taken by the government to stop the menace of copyright violation. However, the enforcement mechanism is still lagging behind. He argued for stronger enforcement procedures and pro-active judiciary. He recommended setting up of special courts to deal with these crimes and target the college and university going population to curb copyright violations completely. Anish Dayal20 believes that the law for protection of copyright will only be possible when the law, legislation and precedents congeal and conform into a recognizable and uniform whole. According to him, to prevent the copyright contents from being misused over the internet, it is essential that website should display abundant caution making it clear to the user that all copyright vests to the owner and any unauthorised downloading would infringe the copyright. In a Study on Copyright Piracy in India21 conducted by National Productivity Council which was sponsored by Department of Education, Ministry of Human Resource Development, Government of India, provided several recommendations for prevention of copyright issues. The crux of the study relates to the problem of copyright piracy in India. It focused on the main copyright segments namely cinematographic works (including video), sound recording, computer software, literacy works and the performers. It suggested that the right-holders should be more vigilant to protect their rights from being violated and in case of any such known violations, immediate police complaints should be made. The copyright societies should launch extensive through print and electronic media to create consciousness. Enforcement authority need to be more trained and to create specific agencies to deal with copyright piracy. The study recommended for encouraging people to register their copyrighted works. Moreover, the study calls for establishing copyright cells in all the states and union territories along with anti-piracy hotline to provide information and register or record cases of piracy. It suggested to create an authority to deal with such issues along with other allied intellectual property issues. It recommended to establish Copyright Control Centre similar to the one present in USA for Anish Dayal; Kamlesh N. Agarwala and Murli D. Tiwari (Editors), Law and Liability on the Internet, IT and Indian Legal System, Macmillan India Ltd. 2002 20
Study on Copyright Piracy in India, 15th December, 1999; Available at: http://copyright.gov.in/Documents/STUDY%20ON%20COPYRIGHT%20PIRACY%20IN%20INDIA.pdf; Last accessed on 12/01/2014 at 12:30 pm 21
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controlling book piracy. Lastly, it sought to encourage copyright industry association to develop databases with respect to its own segment. Vakul Sharma (2010)22 in his book observed that the copyright law has to be proactive to keep pace with technological advancements. However, the fair use right must be preserved at all cost. He is of the view that it is very difficult to eradicate the menace of piracy entirely. Many measure like copyright protected CD’s, which can only be played in dedicated players, Digital Music Initiative and Content Scrambling System, which were deployed, all failed. Thus, in his view it is necessary that industry gives up some control and accept some loss to piracy, but could gain through vast new markets. Aditya Gupta in his article “The Scope of Online Service Providers’ Liability for Copyright Infringing Third Party Content under the Indian Laws – The Road Ahead”23 threw light on the issues of liability of online service providers (OSPs) for third party content in the realm of cyber law. The author extensively examined the applicability and scope of such immunities, by comparatively analysing them with similar provisions in the United States and the European Union. The author further examined the scope of OSPs liability under the Copyright Act, 1957 under three heads viz. direct liability, secondary liability and criminal liability; and compared them with UK, Canada and Singapore; along with applicability in the Indian context. The author finally concluded with an overview of the position would likely to emerge under the Indian law. Paul T. Augastine24 suggests that online piracy can be combatted by means of technical measures and regulatory frameworks. He believes that anti-piracy regimes should take into account the exceptions provided in copyright law. According to him, secure digital delivery systems should be developed and distributing digital content in ways that will attract paying consumers. Public awareness campaign should be started along with pursuing people who
Vakul Sharma; Information Technology, Law and Practice, Law and Emerging Technology, Cyber Law and ECommerce, 2nd Edition, 2010; pp. 354-391 22
Aditya Gupta; The Scope of Online Service Providers’ Liability for Copyright Infringing Third Party Content under the Indian Laws – The Road Ahead; Journal of Intellectual Property Rights (JIPR); Volume 15; January 2010, pp 35-45 23
Paul T. Augastine; Encyclopedia of Cyber Crime: Combating Cyber Crime, Crescent Publishing Corporation, 2007 24
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violate copyright laws. It is also essential for ensuring strong and appropriate enforcement schemes while broadening liability for intermediaries. In a report25 published by WIPO on December 2002, highlighted the impact of digital technologies on intellectual property, most particularly on copyright and the international copyright system. It suggests that legal rules should be framed and applied appropriately so that digital technology does not undermine basic tenets of copyright and related rights. The report estimated the loss that is happening due to piracy issues due to advancement of technology and the effect of it on the economy. According to the report, it is very essential to have a strong copyright laws so that the gross domestic production rises. The legal system should respond to the technological development quickly in an effective and appropriate way. The report suggests that the fundamental guiding principles of copyrights and related rights shall remain the same, whatever the technology may be and should always ensure that the contributors are duly recognized for their contributions, along with the right to profit from the contributions, by allowing reasonable control for exploitation of their work. However, it suggests that a balance should be maintained so that the public interests are not hampered specially in the areas of education, research and access to information, thereby benefitting the society and promoting development of science, culture and the economy. David M. Gould and William C. Gruben26 compared the impact of weaker and stronger protection of intellectual property rights and concluded that strong intellectual property rights leads to higher economic growth. But they also held from their study that too much of stringent protection of any kind of intellectual property limits the dissemination of new ideas which is necessary for economic growth. At the end they give the rational that it all depends on the type of trade regime a country employed. The literature available on the challenges in the protection of copyright due to technological innovations generated an argument that measures should be undertaken for curbing the menace of copyright protection. The scholarly literature discussed above provided various kinds of measures which tend to limit violation of copyright by way of digitalization Intellectual Property on the Internet: A Survey of Issues, WIPO/INT/02, Published on December,2002, pp. 2963 http://www.wipo.int/export/sites/www/copyright/en/ecommerce/pdf/survey.pdf; Last accessed on 16/01/2014 at 10.00 am. 25
David M. Gould and William C. Gruben, Jr., The Role of Intellectual Property Rights in economic Growth in the WTO, Intellectual Property Rights and the Knowledge Economy; Keith E. Maskus Edn. 2005 26
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and internet. However, most of the measures were being incorporated into the local legislations, yet they failed and some could not be made into operation due to various social, cultural and technological barriers. The literature casted negligible light as how to practically deal with the ever increasing problem of copyright violations by digitalization and internet. The studies reflected the reasons and measures but did not provide any steps or guidance for actual implementation. Hence, the literature available are not sufficient to the extent of practical feasibility, implementation and working of the measures in real sense. However, the available literature helped to identify the issues pertaining to the protection of copyright laws from technological aspect and how it influence the country’s economy. The study is restricted to that of India, USA and Singapore looking at the copyright laws which are to be channelized in accordance with digital technology. The study also focuses in creating a balance which is to be maintained so that neither the rights of the copyright owners are restricted nor the public are deprived from the information they require which digital technology and internet serves. The rational of the study is to achieve economic growth and eliminating the risk of employment in the field of copyright industry.
1.3 Objective of Research The objective of the study was to find out the impact of copyright infringement due to technological innovation of internet. The researcher conducted a comparative study of the laws of USA, Singapore and India relating to copyright infringement happening over the internet. Another objective of the research was to study various forms of copyright infringement on internet and the impact it has made on the economy of the countries due to data piracy over internet. The researcher also intended to find out if any reform in India was required for providing effective remedy for copyright infringement by digitalisation and internet and was there a need for multilateral agreement in various countries to do avert copyright infringement by digitalisation and internet. The Researcher also intended to find out whether technological measures or law should be developed to prevent such copyright violations. And lastly, to suggest means to prevent copyright violation on the internet.
1.4 Significance The importance and significance of carrying out a research on this topic is because of rampant data piracy and copyright infringement due to technological advancement in internet and digitalization. Lot of people have lost their jobs and more than thousand billion loss has Page | 27
been suffered by the people who are the owners of copyright. There are measure adopted nationally and internationally to avert copyright infringement through digitalisation and internet, however after the basic research, it shows that the measures taken are not adequate enough to curb the copyright violations. Therefore, it is necessary to investigate the effectiveness of copyright measures to be adopted.
1.5 Hypothesis or Researchable questions? 1. What are the threats which are posed on copyright by internet and digitalization? 2. What are the copyright work which are mostly infringed through internet and by way of digitalization and the reasons for the same? 3. Whether the laws which are there to protect the copyright in a work are adequate enough? 4. What is the impact on the economy and employment due to copyright infringement? 5. What are the developments in law that have taken place to curb copyright infringement on the internet and through digitalization? 6. What are the grey areas in law which require reform for providing effective remedy for copyright infringement on internet? 7. Whether copyright infringement must be curbed through Law or technology?
1.6 Scope of research and Limitation The scope of this research shall be restricted to analysing the infringement of copyright works by internet and digitalization. Another limitation is that the study will be limited to the legal provision of US, India and Singapore on copyright law and any other relevant law. Further, the scope of this research shall be limited to the impact of such infringement on the economy. Because of the paucity of time and other contingent constraints, it might not be possible to conduct an exhaustive non-doctrinal research. Hence, the research information may be more doctrinal in nature, with some aspects studied using non-doctrinal method in a limited way.
1.7 Scope of further research A further research can be carried out to compare legal provisions of other countries dealing with copyright infringement work which are becoming vulnerable to infringement due to advancement of digitalization and internet. Moreover, now a days, with the advancement of Page | 28
digital technologies, digital printers have also arrived where further research can be carried out to find the loop holes in the existing copyright laws and also how to tackle the problems that may arise from such technological innovation.
1.8 Plan of work and Methodology The plan of work and methodology that the researcher has implemented was mainly a doctrinal research. However the researched did a stratified sample survey on one hundred people to gather data about copyright violations in present scenario in India.
1.9 Source The source from which the researcher has gathered the material is mainly, primary source; i.e, from laws, rules, regulations and cases on copyright and related issues; and also from secondary source; i.e., articles, journals, commentaries, textbooks, databases and internet on relevant topic published on wipo website, uspto.com, ipindia.nic.in, ipos.gov.sg etc. which are trusted source of information. The researcher also took due note on the reports published by various international and national organisations for gathering the data on copyright violations. Secondly, the researcher also interviewed people directly and by means of telephone to gather data on copyright violation.
1.10 Scheme of Study
Chapter 1 :- Copyright and Digital Piracy
In the Introduction part, the researcher has explained what copyright is, how it originated, the importance and need of copyright. Further, the researcher portrayed how Internet and Digitalisation have influenced copyright in recent times. The chapter also covered the objectives, significance, researchable questions, scope of research and limitation, methodology of research, source, literature review and the scheme of study.
Chapter 2 :- Evolution of Copyright Laws in response to Technological Advancement
In this Chapter, the researcher has discussed the evolution and development of national and international copyright protection mechanism, the Laws prevalent for the protection of copyright in selected countries and what constitutes copyright infringement in these
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jurisdiction. Moreover, the measures that have been taken to protect copyright infringement in their copyright legislations have also been discussed.
Chapter 3 :- Infringement of Copyright by Digitalisation and Internet
In this chapter, the researcher discussed different types of copyright infringement and related them with different acts by digitalisation and internet, which when done will fall under copyright infringement. The researcher also focused on the judicial pronouncements of different courts in determining copyright issues on internet and digitalisation.
Chapter 4 :- Impact of Digital Piracy on Economy and Employment
In this chapter, the researcher highlighted the impact of copyright violation on employment of individuals on the economy of selected countries as a whole due to digitalisation and internet. The researcher also highlighted the loss of tax revenues that is caused to the government due to such copyright violations.
Chapter 5 :- Enforcement and Challenges
In this chapter, the researcher discussed the probable challenges faced by copyright authorities due to jurisdiction issues, gathering of evidences against the infringer, sociological factors, etc. on curbing copyright infringement. The researcher also highlighted the initiatives taken in these selected countries to tackle the problems created by digitalization and internet.
Chapter 6:- Conclusion, Suggestions and Recommendations
Lastly, the researcher provided probable suggestions for curbing copyright infringement so that efficient copyright protection can be provided to copyright owners. The researcher also highlighted whether technology alone is sufficient to curb infringement of copyright by digitalisation and internet or is there a need of an enactment too to prevent violations of a copyright work by circumvention through technological means, and what steps are necessary to prevent the same.
1.11 Referencing Style Harvard Bluebook 19th Edition.
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CHAPTER 2 Evolution of Copyright Laws in response to Technological Advancement
Summary:This chapter provides the basic understanding about the need for the development of various bilateral and multilateral treaties and convention on Copyright Laws. Till date lot of conventions have come into play to deal with the ever changing and dynamic technologies. With the advent of new inventions or technological development, the copyright law had to undergo changes so that it can harmonise the law in relation to the technology which influences it. Secondly, the chapter discusses about the national developments that happened for the protection of copyright in the new digitalized environment. Hence, this chapter provides a glimpse of the development of copyright law in response to the technological advancement.
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2.1 Introduction The history of 20th Century intellectual property law replicates the reasons for bringing tremendous changes to the Copyright Laws and the countries entering into many bilateral and multilateral agreements with each other for the protection and effective exploitation of the Copyright laws. There were cases dealing with the questions of whether a grant of performance rights included, after Edison invented motion pictures, the right to make a motion picture based on the dramatization of the initial work, whether the grant of motion picture rights during the silent film era included a right to add a sound track when talking motion pictures were introduced, whether the right to make a motion picture granted at a time when television was not yet invented included the later right to exhibit the motion picture on television, and whether the grants of the rights to produce either a motion picture or a television program in the era before the introduction of VCR included the right the right on the part of the motion picture studio to rent and sell copies of the motion picture or television program on video cassettes and video disks.27 Similarly, invention of optical disks, computer technology and internet brought forth new questions as how to exercise the right of storage, reproduction and distribution. Thus, in the way of development of copyright law, there emerged various bilateral and multilateral treaties for the protection of Copyright. Along with these developments, there has been the national laws with regard to copyright which were made in consonance with these treaties. It is therefore worth mentioning of those bilateral and multilateral agreements before analysing the copyright laws of the USA, Singapore and India.
2.2 Brief Overview of Multilateral Treaties and Conventions In the middle of 19th Century, the protection of copyright in international level developed on the basis of bilateral treaties. A number of such treaties providing for mutual recognition of rights were concluded but they were neither comprehensive enough nor of a uniform pattern.28 As a result, a need was felt for formulation of uniform principles in copyright law and this led to the adoption of Berne Convention for Protection of Literary and Artistic Works on September 9, 1886, as the governing law to deal with uniformity in copyright laws.
27
Prof. Ramesh Chandra, Issues of Intellectual Property Rights, Isha Books, 200; p.189
28
Infra Note 33.
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The main aim of the Berne Convention is to protect the interests of the authors in literary and artistic works in a uniform and effective way. The Berne Convention of 1886 evolved as a muti-national system which secured the authors to claim copyright protection for their work first published in any Berne Member State or for any work simultaneously published in a Berne Member State and outside, would be able to claim protection under the Berne Union29. However, it brought forth a controversy as to the scope of rights in a member state. This was resolved in Berlin revision, where it was settled that protection of copyright would be available for any work without any condition of registration or other formality and that the period of protection for most types of work shall be at least the author’s life plus 50 years of protection.30 The Berne Convention was revised many time according to the needs and developments that took place. The main reason for the revisions was to response to the new technological developments. For example, the following questions were dealt with at the various revision conferences: in 1896, mechanical reproduction; in 1908, photographic works, cinematography; in 1928, cinematography, radio diffusion; in 1948, cinematography, radio diffusion, mechanical reproduction; in 1967, television.31 Berne Convention for the first time provided an illustrative list of works that is to be provided copyright protection. The protected works under the Berne text included any original production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, should be protected under copyright law 32. It also accorded protection to derivative works similar to original works, which are based on pre-existing works such as translations, adaptations, and arrangements of music and other alterations of a literary or artistic work33. It exempted the works of applied arts from general terms of protection and allowed the
Any work first published or originating in one of the member states of the Berne Union are to be given the same protection in each of the member states as these States grants protection to a national of their own state. This is the principle of national treatment. 29
At the Berlin Revision, Britain was obliged to accept majority consensus to abandon the traditional requirement of Stationer’s Company registration before suing policy under which registration was not required before publication, but only before suing of the copyright. 30
Mihaly Ficsor, The Law of Copyright and the Internet, The 1996 WIPO Treaties, their Interpretation and Implementation, Oxford University Press, March 2002; pp. 4 31
32
Article 2 of the Berne Convention
33
Article 2 (3) of the Berne Convention
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countries to accord protection by their own domestic legislation which should be for a minimum period of 25 years.34 During 1970s and 1980s, lot of new technological developments took place bringing entertainment for the public to a new level by facilitating satellite broadcasting, cable television, reprography and video technology. Even compact cassette systems facilitating home taping were made available for the public. There was an increase of the importance of computer programs, electronic databases and computer storage of work. The various bodies of WIPO along with the help of UNESCO started to provide guidance to governments on how to respond to the challenges of new technology instead of establishing new international norms. The guidance offered by the WIPO bodies contributed to the development of copyright around the world. By the end of 1980s, a need was felt for the preparation of a new binding international norm as the guidance provided by these bodies were incapable to protect copyright violations from new technological advancement. Two forums started their work for establishing new international principles, one was the GATT under the framework of Uruguay Round negotiations, and the other was WIPO, first, in one committee of experts and later, in two parallel committees of experts.35 TRIPs Agreement was the outcome of GATT being administered by WTO, came into effect from 1st January, 1995. It introduced intellectual property laws in international trading system. TRIPs laid down minimum standard for all types of intellectual properties to be followed by all the WTO members and required its members to provide copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks including service marks; geographical indications including appellations of origin; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data.36 In context to copyright, during the Uruguay Round negotiations, it was found that the Berne amended text of 1971 in Paris contained adequate basic standards of copyright
34
Article 2(7) and 7(4) of the Berne Convention
35
WIPO Intellectual Property Handbook, WIPO PUBLICATION, Second Edition 2008, Chapter 5, p. 269
Overview: the TRIPS Agreement; Available at: http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm; Last accessed on 1.2.2014 36
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protection. So under Article 9.1 of the TRIPs Agreement, all WTO members were required to comply with the substantive provisions of the Paris Act of 1971 of the Berne Convention from Article 1 to 21, including the Appendix thereto. It was the first treaty which explicitly recognised computer programs, both the source code and object code, to be protected under copyright as literary work under Berne Convention.37 It also awarded copyright protection to databases along with compilations of data or other materials even where the databases included the data which cannot be copyrighted.38 It recognised the rights of producers of phonograms, broadcasting organisation and performers under Article 14. However, the TRIPS Agreement made it clear in Article 9.2 that copyright protection would be made available only to the expressions and not to the ideas, procedure, and methods of operation or mathematical concepts. The term of protection under the TRIPS Agreement is the life of the author plus 50 years after his death.39 In cases of producers of phonograms and performer’s is 50 years and 20 years for broadcasting organisations.40 After the adoption of the TRIPS Agreement under the auspices of GATT, the preparatory work of new copyright and related rights norms in the WIPO committees was intensified to deal with problems not addressed by the TRIPS Agreement. 41 Significant issues in the field of copyright have been examined for a number of years through various public and private processes, at WIPO and other international organizations, and at national and regional levels.42 The WIPO Diplomatic Conference on Certain Copyright and Related Rights Questions held in 1996 adopted two treaties in consensus by more than 100 countries namely the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which are usually termed as “the Internet Treaties”. These treaties, each were ratified 37
Article 10.1 of the TRIPS Agreement
38
Article 10.2 of the TRIPS Agreement
According to the general rule contained in Article 7(1) of the Berne Convention as incorporated into the TRIPS Agreement, the term of protection shall be the life of the author and 50 years after his death. Paragraphs 2 through 4 of that Article specifically allow shorter terms in certain cases. These provisions are supplemented by Article 12 of the TRIPS Agreement, which provides that whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making. (Overview: the TRIPS Agreement); Available at: http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm; Last accessed on 1.2.2014) 39
40
Article 14.5 of the TRIPS Agreement
41
Supra Note 33.
42
Infra Note.23
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or accessioned by 30 countries, the WCT came into force from March 6, 2002, and the WPPT on May 20, 2002. The WCT provided wide arrays of copyright protection to authors of literary and artistic works while the WPPT extended similar copyright protection to performers and producers of phonograms. These WIPO Internet treaties were brought in response to the problems raised by digital technology, and particularly by the Internet. They were designed to update and supplement both the existing international treaties, namely the Berne Convention and the Rome Convention with regard to copyright and related rights. These treaties incorporated certain provisions of the TRIPS Agreement which were not previously included in WIPO treaties explicitly. They made it explicit that the computer programs and original databases were to be protected as literary works under Berne Convention as revised in Paris, 1971. The WCT and WPPT opened new grounds by identifying the evolving role to be played by technological protection measures, and by online management and licensing systems. They proposed Member States to provide two types of technological measures for the protection of copyright and related rights. Firstly, the Member States were required to provide provisions relating to “anti-circumvention policy” as addressed in Article 11 of the WCT
43
and Article 18 of the
WPPT and secondly to protect Right Management Information 44 by providing legal support to Right Management Systems as per Article 12 of the WCT 45 and Article 19 of the WPPT. The purpose of these measures is to ensure that protected material can be disseminated and licensed out over the Internet in a safer way. These treaties played a crucial role since their adoption in
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law. (Article 11) 43
Rights management systems operate on the basis of electronic data that is attached to the works and objects of related rights. The data may identify the author or performer, the rights holder, and the work or object itself, and may further describe the terms and conditions for its use. ‘Rights Management Information’ as per Article 12 (2) of the WCT means information which identifies the work, the author of the work, the owner of any right in the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public. For further information, see Infra. Note 23 at P.35 44
Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the Berne Convention: (i) to remove or alter any electronic rights management information without authority; (ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority. (Article 12 (1)) 45
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1996. Important legislative instruments have implemented the provision of both the treaties, like the E.U. Copyright Directive and the United States Digital Millennium Copyright Act (DMCA).
2.3 Legislations for Protection of Digital Piracy USA: U.S Copyright Act of 1976 and the Digital Millennium Copyright Act, 1998 The Constitution of United States granted power to the Congress to enact Copyright laws under Section 8(8) of Article 146. The present copyright law in United States of America is governed by the Copyright Act of 1976. United States formally became member of Berne Convention on 1st March, 1989. It is has been a member of World Trade Organisation since 1st January, 1995 and hence has to comply with the TRIPS Agreement. Moreover, the United States is also a member of Universal Copyright Convention, Geneva from 16 th September, 1955, the day when the treaty came into force. United States is also a member to the twin Internet treaties; i.e, the WCT from 6th March, 2002 and the WPPT from 20th May, 2002. The U.S Copyright Act provides authors of “original works of authorship”, copyright protection under Title17 of U.S. Code47. The works protected under U.S Copyright Law includes literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audio-visual works, sound recordings and architectural works. It empowers the owner of copyright an exclusive right to do or authorise the doing of any act relating to reproduction, distribution, prepare derivatives of a work, displaying to the public, or performing the copyrighted work publically under Section 106. The general terms of copyright protection given to a work is life of the author plus an additional seventy years after the death of the author. In the case of “a joint work prepared by two or more authors who did not work for hire, the term of protection is 70 years after the last surviving author’s death. For any works made for hire, and for anonymous and pseudonymous
“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Available at http://www.law.cornell.edu/constitution/articlei; last accessed on 14th February, 2014 46
Copyright Basics, Copyright, United States Copyright Office, available at http://www.copyright.gov/circs/circ01.pdf; last accessed on 3rd February, 2014 47
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works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright is 95 years from publication or 120 years from creation, whichever is shorter.48 To cope with the development of digital technology, the Copyright Act has been extended with the introduction of the Digital Millennium Copyright Act (DMCA), 1998, the terms of which became fully operational from 28th October, 2000. This Act added a new chapter, Chapter.12 to Title 17 of the U.S. Code. The motive behind this enactment was to ban the use of computers and other electronic devices from infringing traditional copyright works. The Act contains six exceptions to infringement including educational research, encryption research, protection of minors, reverse engineering, privacy of individuals and security testing. It is based on the concept of safe harbour which protects the rights of ISPs, inter alia, cases of third party violation. Singapore: Singapore Copyright Act 1987 In Singapore, the copyright law is governed by the Copyright Act of 1987 (Chapter 63 as revised in 2006). Singapore is a party to Berne Convention from 21st December, 1998 and the WCT and the WPPT from 17th April, 2005. It became member of WTO from 1st of January, 1995 and is thus bound by the TRIPS Agreement. Under the Singapore Copyright Law, copyright means a bundle of rights available to the owner of copyright in respect of original works for a limited period. It grants exclusive right in case of literary, dramatic, artistic and musical works to the owner of copyright to reproduce, publish, perform, communicate, and adaption of the work depending on the nature of the work. In case of computer programmes, the copyright law provides scope to enter into commercial rental agreements to the owner of copyright.49 The term of copyright in a literary, dramatic or musical work, or in an artistic work other than a photograph, is 70 years after the expiration of the calendar year in which the author of the work died.50 Under Section 82, Copyright is granted to a sound recording to the owner of copyright. He has exclusive right to make a copy of sound recording, enter into commercial rental agreement, and publish the sound recording and to make it available to the public by means or as a part of a digital audio transmission. Copyright is also granted to cinematograph films to make a copy of the film, communicate to the public or cause it to been seen by the
48
Section 302 of US Copyright Law.
49
Section 26 of Singapore Copyright Act, 1987.
50
Section 82(2) of Singapore Copyright Act, 1987.
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public insofar as it consists visual images under Section 83. The term of copyright in a cinematograph film and sound recording, subject to Section 91 and Section 92, after their publication is 70 years after the expiration of the calendar year in which the work was first published. Section 84 and Section 85 accords copyright protection to television broadcasts, sound broadcasts and cable programmes. Section 94(1) provides copyright protection in a television broadcast or sound broadcast for a period of 50 years after the expiration of the calendar year in which the broadcast was made. Section 95 provides 50 years of copyright protection from the end of the calendar year in which the cable programme is first included in the cable programme service.51 Section 31 states that an infringement occurs when a person other than the copyright owner in cases pertaining to in a literary, dramatic, musical or artistic work, does any act or authorises the doing of any act which interferes with the exclusive right of the copyright owner.52 India: Copyright Act of 1957 In India, copyright law is governed by the Copyright Act of 1957. India is a member of Berne Convention (Paris Act) of 1971 from May 6, 1984. India adhered to TRIPS Agreement on 1st January, 1995 and signed Universal Copyright Convention on September 6, 1952 which came into force on January 21, 1958. Although, India is not a member of Rome Convention, the WCT and the WPPT, yet the Copyright Act of 1957 has been amended six times after independence, one each in 1983, 1984, 1992, 1994, 1999 and the last amendment in 2012, to meet various national and international requirements. The present Copyright Amendment Act of 2012 was introduced mainly to harmonise the Copyright Act, 1957 with the WCT and the WPPT and to deal with the challenges posed by digitalisation. Copyright as stated in Section 14 of the Copyright Act, 1957 means the exclusive right to do or authorise the doing in respect of a work or substantial part thereof as enumerated in the Act. This right includes right to store, reproduce, distribute to public, perform, translate,
Singapore Copyright Act; available at: http://statutes.agc.gov.sg/aol/search/display/view.w3p;page=0;query=DocId%3Ae20124e1-6616-4dc5-865fc83553293ed3%20%20Status%3Ainforce%20Depth%3A0;rec=0;resUrl=http%3A%2F%2Fstatutes.agc.gov.sg %2Faol%2Fsearch%2Fsummary%2Fresults.w3p%3Bquery%3DStatus%253Acurinforce%2520Type%253Aact, sl%2520Content%253A%2522ipos%2522%2520Content%253A%2522act%2522;whole=yes#pr82-he-.;Last accessed on 6th March, 2014 51
52
Section 31 of Singapore Copyright Act, 1987
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adapt, sell or give in commercial rental and or offer for sale of a work, depending on the nature of the work. Section 13 states the works in which copyright subsists. It provides that a work is to be protected under copyright if it is either an original literary, dramatic, musical and artistic work; a cinematograph films or a sound recording. The term of copyright in India in published literary, dramatic, musical and artistic works is lifetime of the author plus sixty years from the beginning of the calendar year next following the year in which the author died.
53
In cases of
cinematograph films, sound recording, government works where government is the first owner, public undertakings or an international organisation to which provisions of Section 41 applies, the term of copyright is sixty years from the beginning of the calendar year next following the year in which the work is first published. For better protection of copyrighted works from the influence of digital technologies, the Indian Copyright Act expanded its horizon. It provided that right to reproduction also includes right of storing the work in any medium by any electronic means in cases of literary, dramatic, artistic or musical works. While in cases pertaining to cinematograph film and sound recording it accorded protection stating that right to make copies includes the storing of it in any medium by any electronic or other means. The latest amendment to the Copyright Act in Section 14 is mainly to secure the works from being infringed by means of digitalisation. The wide connotation given to the phrases is with the basic intention to encompass digital environment due to the special nature of transmission of digitised works over the Internet where transient copies get created at multiple locations. Further, in relation to computer programmes, the Copyright Act treats it as literary works and in addition to general exclusive rights, it also grants exclusive right to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme. To save the interest of performers from infringement in digital environment, the Copyright Act provides for exclusive right of performers in Section 38A which empowers the performers to authorise any reproduction of sound recording or visual recording in any material form including the storing of the performance in any medium by electronic or other means including the distribution to the public. Section 51 lays down the acts which are deemed to constitute infringement. As per the section, any act done by any person without the licence of the owner of copyright is infringement if such act violates any of the exclusive right granted to the copyright owner by
53
Section 22, Copyright Act 1957
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the statue or is done in breach of a licence so granted by the copyright owner. However, in relation to digital environment, fair use provision has been extended. Section 52 provides exception to any transient and incidental storage of any work through the process of caching. But if any deliberate storing of such work is done or reproduced and or distributed without authority of such works, it would constitute infringement under Section 51 of the Act.
2.4 Conclusion Thus, the above legislations along with the international treaties are being developed in recent past exclusively to deal with the copyright problem due to digitalisation. The earlier development that took place were able to curve the menace of digital development till 1970s and to a certain point, in the first few years of 1980’s. After that, there was a total shift in technological advancements which has brought up new challenges which no one ever imagined, mainly due to the Internet and the e-commerce market that developed due to its influence. The degree of online piracy of copyrighted works today is staggering. With the growth of streaming services, direct download sites, cyber-lockers, and peer-to-peer services such as BitTorrent, the old problem of online piracy has expanded and diversified in new and often unpredictable ways. Peer-to-peer systems especially have become bastions of Internet piracy. One study, based on a sample of 1021 BitTorrent files from the Mainline DHT system, found that 99% of the sample was likely infringing. 54 Another study, which used server scrapes to gather information on one thousand BitTorrent transfers, found that 97.9% of nonpornographic torrents were likely infringing.55
Ed Felton, Census of Files Available via BitTorrent, FREEDOM TO TINKER (Jan. 29, 2010), Available at: http://freedom-to-tinker.com/blog/felten/census-files-available-bittorrent; last accessed on 2nd March, 2014 54
Robert Layton & Paul Watters, Investigation into the Extent of Infringing Content on BitTorrent Networks, INTERNET COM. SECURITY LABORATORY 1, 18 (Apr. 2010). Available at: http://www.afact.org.au/assets/research/bt_report_final.pdf; last accessed on 24th February, 2014 55
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CHAPTER 3 Infringement of Copyright by Digitalisation and Internet
3.1 Summary:This chapter discusses in what manner digital technologies and internet are used by the potential users for copyright violations. In this chapter, a brief of different types of technology is given, linking the ill use of such technology to copyright violations. It also discusses how the use of technology interferes with copyright owners’ exclusive right. Lastly, this chapter highlights the view of the Courts in different copyright cases where an act when committed would qualify to constitute copyright infringement or not.
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3.1 Introduction Technological changes have always created challenges to the basic principles of Intellectual Property Laws. Internet and digital revolution pose complex problems for IP Laws and their enforcement. The three technological advances, namely, the digitalisation of information, networking and the internet, have primarily turned the economics of reproduction; networking has changed the economics of distribution and Internet has changed the economics of publication. The change is reaching uncontrolled levels and traditional assumptions about IP Laws have to be rewritten. Now the laws have to deal with all these since the copyrighted works can be replicated easily in the digital medium. This problem has arisen due to introduction of digital medium. With the development of digital technologies like OCR, scanner, copier, grabbers, etc. it has become easy to convert a work into binary form. Digital technology has brought in a new form of transmission of copies of a work. With the help of internet, it enables the transmission of digital contents, whether it be a text, sound, images, audio-visual works and computer programs, can be transmitted to remote locations and downloaded or re-distributed. It facilitates instantaneous making of copies without any sort of degradation in quality. Moreover, a person can make any number of copies he wants which can again be re-distributed or stored in any medium. Now a days, Internet facilitates users to save their digital contents over cloud bases storage directly from their computers, mobile phones, etc.
3.2 Internet and digital technology as a medium of Copyright Violations The internet is a network of networks, linking computers to computers sharing the TCP/IP protocols56. It is the transport vehicle for the information stored in files or documents on another computer. It can be compared to an international communication utility providing access to computers. The internet itself does not contain any information. It is simply a network of linked computers allowing participants to share information on those computers.57
Transmission Control Protocol (TCP)/Internet Protocol (IP), the suite of communications protocols used to connect hosts on the internet. TCP/IP uses several protocols. It is the defacto standard for transmitting data over networks. 56
See Douglas E. Corner, Ralph E. Droms, Computer Networks and Internets, Forth Edition, Prentice Hall; 2003 57
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Being connected to the internet means being connected to all other networks. A computer on one network can send packet data over the internet to any other computer connected to the internet. When a packet data is sent, it is routed through many other servers to reach its final destination Hence, in this manner, internet too facilitates in infringing copyright contents by way of caching, browsing, mirroring, scanning, uploading, downloading or file swapping. These activities result in the following:1. Transmission of information from one computer system or network to another, involving temporary storage (RAM), or permanent storage in hard disk, pen-drives, cd’s, or in any storage device. 2. An unauthorized storage of such information causes a violation of the copyright owners exclusive right to make copies; to reproduce the copyright work. 3. A violation of copyright owner’s exclusive distribution right. 4. An appearance of a copyright image in a web browser infringes copyright owner’s public display right. 5. An infringement of copyright’s owner’s exclusive right to prepare derivative works. On the other hand, digital technologies are the evolving technologies. These digital technologies are used to digitise contents for the ease of use by the people. The main motive behind digital technologies are to facilitate the public to accomplish a work in a hassle-free environment using very less resources. Digital technologies evolved because it is easy to use and does not require special training. Another reason is the affordability and cheap maintenance cost. Many copyright infringement that take place by use of internet and digital technologies are because a lot of people do not even know that they are infringing the exclusive right of a copyright owner. While on the other hand, at times it is seen that these practice of copyright infringement are so rampant that most people do not even think about whether or not they are legal. This has also aggravated the situation. Following are the list of the works that constitute copyright infringement. 1. Photocopying Photocopiers have been used by the people, much before internet arrived and have become accustomed to it. They are used for all sorts of tasks which involve physical copying Page | 44
of a work, without knowing that some of these acts could violate copyright. A photocopier (also known as a copier or copy machine) is a machine that makes paper copies of documents and other visual images quickly and cheaply. Most current photocopiers use a technology called xerography, a dry process that uses electrostatic charges on a light sensitive photoreceptor to first attract and then transfer toner particles (a powder) onto paper in the form of an image. Heat, pressure or a combination of both is then used to fuse the toner onto the paper. Now a days, even coloured photo copiers are available, which allows people to make exact same copies of books, articles, journals or any other documents. Most people helps others by lending their legally purchased a copy of a work, knowingly and unknowingly, to make photocopies of it. This has led to serious violation of copyright since the exclusive right to copy belongs to the copyright holder. 2. Printing In recent years, printing have become popular since dynamic contents can be printed with great clarity. It is a process for reproducing text and images, typically with ink on paper. The reason of printing becoming popular is that the user can modify or correct the file before printing. But due to the misuse of printing, copyright holders, especially in literary works, i.e, photographs and books etc. have to suffer. Now a days, printing is not limited to papers. Printing can be done on literally everything. This has led to serious complications and many disputes have arisen due to this technology. One of the example that can be cited is that of Modern Dog Design vs. Target Corporation, where Modern Dog utilized a series of sketches of dogs in their compendium put out by Chronicle Books in 2008. The firm brought a law suit against Target Corporation alleging that illustrations from that design have been used in a Tshirt produced by Disney/Target for sale. 3. Scanning Scanning is more advanced than photocopying and printing. Unlike photocopying and printing, it creates digital file of the document scanned into it. It optically scans images, whether it is printed text, handwriting, or an object, and converts it to a digital image. The ill effects of scanning is that it makes a digital copy of an object, and then can be circulated via Internet. As a result, whoever has the access of such copy can take out print outs or save in computer hard disk. This act clearly violates reproduction and distribution rights of copyright holders. At present, mobile devices can also perform the scanning function very well as like of a scanner with specialised application like cam scanner, etc. This application unlike camera function can identify the documents and scan it. Other developed application recognise the text, graphs and Page | 45
images in a document and can make them easily editable after the scanning is done. One such application is Optical Character Recognition (OCR) which helps in electronic conversion of scanned or photographed images of typewritten or printed text into machine-encoded/ computer-readable text. It is a common method of digitizing printed texts so that they can be electronically edited, searched, stored more compactly, displayed on-line, and used in machine processes such as machine translation, text-to-speech, key data extraction and text mining. The unauthorised act of scanning can lead to violation of exclusive right of the copyright owner to reproduce, store and distribute the work. 4. E-mail Email or electronic mail, may be considered to be one of the most used feature on the internet. Millions of people send and receive millions of email messages every day. It is a method of exchanging digital messages from an author to one or more recipients. An email can be sent with attachment, which can be a music file, document, images, software, etc which are copyright protected. Hence, there are various ways to infringe copyright via e-mail. Any e-mail sent by a person to other recipients with the copyrighted contents or forwarding it to someone, storing it into computer’s hard drive or in any electronic medium or printing it without the author's permission violates the author's exclusive rights. With the raise in capacity of attachments to several gigabytes, it has become possible for people to send even large data like movies and softwares. Other softwares like winrar, winzip etc. has the ability to compress or split large contents into small fragments of data which can then be easily transmitted through emails. 5. Networking A user can infringe copyright by posting content on a public or private network for others to access. If the content is offered only on a subscription basis, and is meant only for one person, then placing the content on a network has the same effect as sharing passwords because it gives access to more people than are licensed. But even more specifically, placing an item on a network for others to access can be tantamount to distribution, in violation of the exclusive right to distribution held by the copyright owner. This holds true even if the network is not a public one. Sharing the content even with co-workers is still a violation of copyright. Indeed, most of the content infringement that goes on in the workplace is unauthorized intraoffice sharing.
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6. File Sharing File sharing, a category similar to, but more specific than networking, is the uploading or downloading of a content file (i.e. a Word document, a PDF file, or an e-book) onto or off of an online service where anyone can copy it. File sharing is often conducted through peerto-peer sites, many of which specialize in music files, but include other content as well. Another place where file sharing is rampant is on FTP sites, which allow users to upload and download files to and from a site. Infringers commonly use FTP sites because they are efficient for transferring large files and most FTP servers support some form of anonymous login. Other way of file sharing includes uploading of copyrighted contents on cloud storage and then sharing the file to people via email or by providing the link to such shared folder. 7. Camcording Camcording has become the most used tool in copyright violation in cinematographic films. A camcorder is an electronic device combining a video camera and a video recorder, typically used for consumer video recording. Most of the newly launched movies are recorded with the help of camcorder in theatres and multiplexes. With advanced camcorder’s, the the recording can be uploaded to websites while the recording continues, thus making the copy of the recorded videos available both online and offline. This clearly violates the copyright holder’s right of storing, distribution and display right. Present days camcorders can records videos with deep pixels making the quality of the videos to be an exact one. 8. Ripping Ripping is the process of copying audio or video content to a hard disk, typically from removable media such as compact disc (CD) or DVD, although the word refers to all forms of media. Despite the name, neither the media nor the data is damaged after extraction. Ripping is often used to shift formats, and to edit, duplicate or back up media content. Ripping is distinct from simple file copying, in that the source audio or video often isn't originally formatted for ease of use in a computer file system; ripping such data usually involves reformatting it and optionally compressing it during the extraction process. Ripping has also posed a threat a problem for copyright owners as this process allows users to circumvent the technological measures to deny copying of any data. Moreover, ripping allows user to convert the data into other formats and hence large data can be compressed using different formats. The best part of ripping is that the quality of the output remains the same as that of the original, but in much compressed way. Page | 47
9. Linking Linking is the practice of allowing a user to move from one website to another by clicking on a link. In the formative years of Internet, linking technology was the only potent technology through which data sharing on the web was made. Linking is of two types, i.e., surface linking and deep linking. When the home page of a site is linked, it is surface linking, and a deep linking is when a link bypasses the home page and goes straight to an external page within the linked site. The problems in relation to linking have arisen in the context of use of Internet as a commercial medium. Thus linking have contributed to copyright infringement. There are instances where copyright infringement happened by the practice of linking. The problem arises only with regard to deep linking. Deep links defeat a website’s intended method of navigation. Further, deep links steal traffic from the linked site’s homepage thereby decreasing revenue that could be generated from advertising that is dependent on the traffic onto the site.58 Deep link thus allows visitors to bypass information and advertisements at the homepage and go directly to an internal page. It is also argued that by linking, a user makes a copy of the website he links to because it is cached into the computer, or temporarily stored in the screen memory. Unless the copy falls under the implied license or fair use, it directly infringes the reproduction right.59 However, the linking party merely provides a Universal Resource Locator (URL) that directs the user to the content. The user computer then copies the content. Therefore, a linking party is not liable for direct copyright infringement. A party is only liable for vicarious copyright infringement liability if the party has ability to control the infringing activity and derives a direct financial benefit benefit from it.60 For example, under the Indian Copyright Act, 1957, linking can be an offence if the linking is detrimental to copyright owners right. Section 2(ff)61 includes any communication through satellite or cable. Therefore, as per this definition, if the contents of a web site on
Mittal Raman, Copyright Law and the Internet, in S.K. Verma and Raman (eds.), Legal Dimensions of Cyberspace, Indian Law Institute, 2004. 58
59
Dr. R.K. Chaubey, An Introduction to Cyber Crime and Cyber Law, Kamal Law House, 2008
Thripathi Abhishek Nath, Abuse of Meta-Tags, Link Frames and Domain Names, in Manu Luv Shahalia (ed.), Perspective in Intellectual Property Law – Many side to a coin, Universal Publishing Co. Pvt Ltd, 2003. 60
Communication to public means making any words available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member actually sees, hears or otherwise enjoys the work so made available. 61
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internet displays any contents which is detriment to the right of the copyright owner, the owner can take action against that person by virtue of expression “by any means of display”. 10. Framing Framing is equated with “picture in picture” framework, because the main site along with its logo remains intact as main frame or border of the linked site. It is unlike like hyperlinks where user leaves the main site and views the linked site. In case of framing, user can distinguish between the main and the framed site because of the difference in source material appearing on the screening in the different frame. Therefore, a framer of a website cannot be held liable for copyright infringement as he neither reproduces the copyrighted content nor makes copy of the same. He only directs the browser to to retrieve the information within his website in a framed window. This affects the integrity of the copyright owner, and can be made liable for such act. For example, under Indian Copyright Act, 1957, Section 51 read with section 14 of the Act cannot be applied in case of framing website, since the framer did not commit any act to make him liable for copyright infringement. However, hi could be held liable under section 57(1) of the Act for infringing the right to integrity of the copyright owner.
3.3 Types of Copyright Infringement Before understanding the different types of copyright infringement, it is pertinent to understand the way courts look into a matter to determine whether an act constituted copyright infringement or not. In U.S Law, some direction has been given to judicial bodies by prescribing four factors which might be brought into account in different circumstances: the extent to which the defendant’s purposes differ from that of the copyright owner; the nature of the work; the amount taken in relation to the whole; and the degree of interference with the owner’s own commercial prospects.62 In India, while determining the amount of copyright violations, the amount of gain or unfair advantage the defendant had, wherever quantifiable; the amount of loss caused to the other person due to the default of the defendant and the repetitive nature of the default caused by the defendant are taken into account. While in Singapore, in determining whether the extent of the infringement is significant, the court takes into account the volume of the work copied; the value of the infringing copies; whether the infringement caused by the defendant has a substantial prejudicial impact on the plaintifft; and all other relevant matters; which might vary according to the circumstance of each case.
62
Supra Note. 7 at Page 907
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Based on the above mentioned factors, the Courts have to decide whether an act committed by the defendant, actually violated one or all of the exclusive rights granted to the copyright owner. Since the act of violation of copyright differs from circumstance to circumstance, depending on how the defendant interfered with the right holders’ exclusive right, one of the three types of infringement has to be done by the defendant for making him liable for copyright infringement. They are:1. Direct infringement 2. Contributory infringement 3. Vicarious Infringement 1. Direct Infringement:It occurs where someone exercises one of the exclusive rights granted by the Copyright Act without seeking the permission of the copyright owner. While unauthorized copying is the most common form of direct infringement, a violation of any of the exclusive rights constitutes copyright infringement. Direct infringement therefore also includes, for example, a performance or adaptation made without the author’s permission. In Religious Technology Center v. Netcom On-Line Communication Services63 the court refused to impose direct infringement liability on an OSP. In this case case the plaintiffs sought to hold liable the OSP (Netcom) and the operator of a BBS which gained its Internet access through the OSP for postings of the plaintiffs’ copyrighted works on the bulletin board. The works in question were posted by an individual named Erlich to the BBS’s computer for use through Usenet.64 The BBS’s computer automatically briefly stored them. The OSP then automatically copied the posted works onto its computer and onto other computers on the Usenet. In accordance with usual Usenet procedures, Usenet servers maintained the posted works for a
63
07 F. Supp. 1361, 1367 & n.10 (N.D. Cal. 1995)
The Usenet is “a worldwide community of electronic BBSs that is closely associated with the Internet and with the Internet community. The messages in Usenet are organized into thousands of topical groups, or Newsgroups’. As a Usenet user, one can read and contribute (‘post’) to his/her local Usenet site. Each Usenet site distributes its users’ postings to other Usenet sites based on various implicit and explicit configuration settings, and in turn receives postings from other sites.” Daniel P. Dern, The Internet Guide for New Users, McGraw-Hill Book Company; First edition; 1994; Pp. 196-97. 64
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short period of time – eleven days on Netcom’s computer and three days on the BBS’s computer.65 The OSP neither created nor controlled the content of the information available to its subscribers, nor did it take any action after being told by the plaintiffs that Erlich had posted infringing messages through its system.66 The court held that absent of any volitional act on the part of the OSP or the BBS operator other than the initial setting up of the system, the plaintiffs’ theory of liability, carried to its natural extreme, and would lead to unreasonable liability. Although copyright is a strict liability statute, there should still be some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party. Accordingly, the court refused to hold the OSP liable for direct infringement. The court also refused to hold the BBS operator liable for direct infringement. The court held that the storage on a defendant’s system of infringing copies and retransmission to other servers is not a direct infringement by the BBS operator of the exclusive right to reproduce the work where such copies are uploaded by an infringing user. 2. Contributory Infringement:When one, who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another. Contributory infringement is based on a connection to the infringing activity (not necessarily to the direct infringer). A contributory infringer may be liable based on the provision of services or equipment related to the direct infringement. Courts have found contributory infringement liability, for instance, when a defendant chose the infringing material to be used in the direct infringer's work. Thus, contributory infringement applies where one party knowingly induces, causes, or otherwise materially contributes to the infringing conduct of another. The adverb “knowingly” does not simply mean “awareness of infringement” but instead implies some meaningful capacity to prevent or discourage infringement. For example, in case of computer games and softwares, if someone posts of serial numbers, makes cracker utilities and distributes the crack files in public, links to FTP sites were software may be unlawfully obtained, informing others 65
Netcom, 907 F. Supp. at 1367
66
Ibid.
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of FTP sites where software may be unlawfully obtained, aids others in locating or using unauthorized software, supporting a website upon which the above information may be obtained and allowing sites where the above information may be obtained to exist on a server. Any of the activities done by a person, denotes that the person carrying on such activity has the knowledge of infringing rights of copyright holders. Anyone who knows or should have known that he or she is assisting, inducing, or materially contributing to infringement of any of the exclusive rights of another person is liable for contributory infringement. 3. Vicarious Infringement:A person would be held vicariously liable only if that person had a right and control over the infringers act and is receiving a direct financial benefit. Vicarious liability applies normally in employer-employee relations, master-servant relation or the principal-agent relation, where one party; for example an employer who has a control over his employee, and because of the infringing act of his employee, he receives direct financial benefit. Often situation arises where employee does infringing activities without the knowledge of the employer, yet the law holds the employer liable for copyright infringement. Unlike contributory infringement, knowledge is not an element of vicarious liability. The reason behind it is that the employer is under a duty to exercise reasonable care in hiring, supervising, controlling and monitoring its employees so as to make copyright infringement less likely. Secondly, it is cost effective for the copyright holder in suing one person than suing individually a number of persons. Lastly, it helps copyright holders to realise the compensation which they might not have been able to get, as in most case it has been seen that the employees are either insolvent or does not have adequate resource to pay for the compensation.67 However, it is not the case that every time an employee does an infringing act, the employer would be liable. If an employee does the act outside the authority and control of his employer and for his own benefit, then in that case the principle of vicarious liability of the employer would not apply. The example of a concert events can better illustrate the principle of vicarious liability involved in copyright infringement. Suppose a musical concert has been organized by a person, Of course, the employer might also lack sufficient funds. Note, too, that employers are only held responsible for infringements that occur within the scope of employment. Infringement committed by an employee on his own time and for personal reasons would not trigger vicarious liability. For a discussion of the economics, see Alan O. Sykes, Vicarious Liability, in Peter Newman; The New Palgrave Dictionary of Economics and the Law, VOL. III; Macmillan Press; 1998. 67
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named “A” where A hired some young local singers to sing top rating tracks for the concert. In this case, when the singers appointed for the concert sang publically the musical tracks without taking license from the copyright holder, there has been a violation of copyright owner’s exclusive right of public performance. These performers often does not have adequate resources to pay for the damages caused to the copyright owners. In this situation, vicarious liability allows the copyright owners to file a suit against the event organizer, “A” and get compensated, instead of filing a suit against all the artist who sang in that musical concert. This is in a way cost effective to the copyright owners. Moreover, when such a concert are held, the event managers keep on monitoring the direct infringers who are its employee. As the empoyer had been monitoring his employees, the employer should have exercised his right to allow his employees to sing only those musical tracks for which they have acquired liicence. The doctrines of contributory infringement and vicarious liability have evolved over time. Of these, the most significant was the 1984 U.S Supreme Court’s decision in Sony v. Universal Studios.68 In this case, the plaintiff’s were producers of television programs and the defendant were manufacturers of VCR. The plaintiff sued the defendants for contributory and vicarious infringement on the ground that the use of VCR by the customers facilitated in making unauthorized copy of their copyrighted television programs. The Supreme Court rejected the arguments of the plaintfiff’s on the ground that the defendant had no control over the infringing customers and that the defendant’s product is meant for lawful uses. Henceforth, the defendant cannot be made liable for his product if the users intends to use it unlawfully.
3.4 Threats posed on Copyright by Digitalisation and Internet With the development of technology, it has become easy to convert hard copies of a file to binary form and also to disseminate it. This dissemination involves storing of a work, reproduction of the work, circulation of the work for public display, sale and or using a work for commercial rental. All these practices has resulted into the following:o Storing or copying a work without permission or license; o Present the work of author as the work of oneself; o Produce an online parody or an online endorsement;
68
464 U.S. 417 (1984).
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o Reproduce the style of original creation , deliberately leading others to believe that the work is that of the original creator; o Fail to give credit for a reproduction; or o Inadequately attribute credit in case of a distorted work. Copyright in much of the material which is placed on the internet belongs to the content provider or who has the licence of the copyright owner. With the use of digital technologies, different types of works are copied in computer-readable language and then are uploaded to several websites, providing access to the site unlimitedly. This confirms the clear intention of the person to is to make the whole content available to anyone who may be interested and as a result has contributed to copyright violation in following manners. 1. Right of Storage When someone downloads or stores in computer hard disk or in any removable media and even if a temporary copy is made in RAM, it amounts to fixation of digital downloads in a tangible form. This act of storing of digital contents without the licence from the copyright owner constitutes copyright infringement as the owner and his licencee alone has the right to store the digital contents. In Mai System Corp. vs. Peak Computer69, the copyright owner of the operating system software sued a computer repair company for infringement based on repair company’s turning on a computer running the operating system for the purpose of servicing the computer. In doing so, the defendant was able to view the software programme to assist him in diagnosing the problem. The Ninth Circuit Court upheld the District Court’s conclusion that loading of a computer software into the memory of a central processing unit causes a copy to be made which in the absence of permission from the copyright owner constitutes infringement. However, by the rules of international principles, now cached data, i.e. transient copies if made during the course of transmission have been excluded from copyright infringement.70 In Microsoft Corporation vs Mr. Yogesh Papat and Anr.,71 the Defendants were engaged in the business of assembly and sale of computers since 1996 and were selling 69
991 F.2d 511 (9th Cir.1993)
70
Article (2) of the Berne Convention and Article 13 of the TRIPs Agreement.
71
118 (2005) DLT 580, 2005 (30) PTC 245 Del
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computers loaded with pirated versions of Microsoft software. Microsoft placed a trap order with the Defendants through a Microsoft employee, and the Defendants sold to this employee a computer preloaded with Microsoft's pirated software, viz., visual studio 6.0, MS Windows 98 and MS Office 2000. Thereafter, Microsoft filed a suit against the Defendants inter alia for an order of permanent injunction and damages on the ground that the Defendants did not have any license or permission from Microsoft to copy or sell its software. However, the Defendants did not appear before the Court. Accordingly, the Delhi Court passed an ex-parte order against the defendant for making illicit copies of the operating systems software by openly copying whatever operating system is currently saleable which ultimately violated the plaintiff’s exclusive right to store, sell, distribute and or public display right. In order to facilitate whether there is infringement of a copyright two conditions are to be satisfied:a. That the defendant work and the plaintiff’s work are substantially similar; b. That the defendant had access to the plaintiff’s work. 2. Reproduction Right Reproduction arises when a digital copy can be endlessly reproduced with no loss in quality, so that there is little or no distinction between that and the original. Authors of literary and artistic works under Berne Convention have the exclusive right of authorizing the reproduction of these works, in any manner or form.72 Therefore, if any person without the authority of the copyright owner reproduces any work in any form, constitutes copyright infringement since it interferes the copyright owner’s exclusive right granted by the copyright law. In Napster’s Case,73 the appellant, Napster Inc., was a company started in 1999 by Shawn Fannig, a computer science student at Boston’s Northeastern University. It provided a platform for users to upload and download music files in a compressed digital format (MP3). It provided Music Share software freely available for Internet users to download. Users who obtain Napster's software could then share MP3 music files with others logged-on to the Napster system. Napster allowed users to exchange MP3 files stored on their own computer 72
Article 9 of the Berne Convention
73
A&M Records, Inc. v. Napster, Inc.; 239 F.3d 1004 (9th Cir. 2001)
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hard-drives directly, without payment. The MusicShare software interacted with Napster's server-side software when the user logged on, automatically connecting their computer to one of some 150 servers that Napster operated. The MusicShare software read a list of names of MP3 files that the user had elected to make available. This list was then added to a directory and index, on the Napster server, of MP3 files that users who were logged-on wish to share. If the user wanted to locate a song, they had to enter its name or the name of the recording artist on the search page of the MusicShare program and click the "Find It" button. The Napster software then searched the current directory and generated a list of files responsive to the search request. To download a desired file, the user had to highlight it on the list and click the "Get Selected Songs" button. The user could also view a list of files that exist on another user's hard drive and select a file from that list. When the requesting user clicked on the name of a file, the Napster server communicated with the requesting user's and host user's MusicShare browser software to facilitate a connection between the two users and initiated the downloading of the file without any further action on either user's part. The Defendant’s were major record companies who saw the potential for this technology to impact their sales. These reproduction and distributions gave rise to copyright violations and the defendant quickly filed suit against Napster as a contributory and vicarious copyright infringer. The United States District Court (District Court of Northern District of California) found that Napster had contributed to the infringement of copyrights owned by the defendant and issued an injunction from which Napster appealed. On appeal, the Ninth Circuit ordered a stay of the District Court's injunction, pending resolution. However, the Court upheld the decision of the District Court. The Court found that the act of Napster in distributing copies of the copyrighted works in music files fell outside the provision of fair use. The Court held Napster vicariously liable as it did not affirmatively use its ability to patrol its system and preclude access to potentially infringing files listed in its search index. Further, the Court held that Section 512 (a) of the Digital Millennium Copyright Act and Section 100874 of the Audio Home Recording Act does not protect Napster from the Section 1008 provides: “No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the non-commercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.” 17 U.S.C. § 1008. 74
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plaintiffs' claims of copyright infringement. The court remanded the case back to the district court to serve an injunction that requires Napster to remove infringing copyrighted material from its program. In MP3 case75, the plaintiffs’ the Recording Industry Association of America, Inc. (RIAA), on behalf of 10 of its members in the year 2000, , filed a complaint in federal court in the Southern District of New York for wilful copyright infringement against MP3.com, based on MP3.com’s new “My.MP3” service. According to the complaint, this service allowed users to gain access through the Internet, and download digital copies of, commercial CDs, using one of two component services: “Instant Listening Service” through which a user could place an order for a commercial CD through one of several online CD retailers cooperating with MP3.com, and then immediately have access to the song tracks on that CD stored on an MP3.com server, before arrival of the shipment of the physical CD ordered by the user. Another service, called “Beam-it” allowed user to have access of songs listed in MP3.com’s website if they had a copy of a CD containing musical tracks and are identified by its web server. Moreover, the website also used to provide “My.MP3 service” to its users by facilitating musical tracks to be added to the collection of user’s databases, which were often copies of the tracks being circulated over its servers through its users while some were purchased copies. Therefore, the plaintiff’s filed a suit against the defendant alleging wilful copyright infringement. The court held in MP3.com case that the defendant violated the exclusive right of reproduction of the copyright owners wilfully. The court substantiated its reason by stating that copying of copyrighted contents by the defendants and making it available to others itself constitute infringement since the defendants were not the lawful owners of the contents and that right of distribution is particularly the exclusive right of the copyright owners which was illegally exercised by the defendants.
75
UMG Recordings, Inc. v. MP3.com, Inc., No. 00 Civ. 0472 (S.D.N.Y. Jan. 21, 2000).
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In Parker v. Google,76 plaintiff Gordon Parker was the owner of copyright in an eBook titled “29 Reasons Not To Be A Nice Guy.” He posted Reason # 6 on USENET. Parker asserted that Google’s automatic archiving of this USENET posting constituted a direct infringement of his copyright. He also claimed that when Google produced a list of hyperlinks in response to a user’s query and excerpted his web site in that list, Google again directly infringed his copyrighted work. The district court rejected these claims. Citing the Costar and Netcom cases, the district court held that “when an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users, the necessary element of volition is missing. The automatic activity of Google’s search engine is analogous. It is clear that Google’s automatic archiving of USENET postings and excerpting of websites in its results to users’ search queries do not include the necessary volitional element to constitute direct copyright infringement.” On appeal77 before the Third Circuit Court, the court noted that, “to state a direct copyright infringement claim, a plaintiff must allege volitional conduct on the part of the defendant,” and that the plaintiff; Mr. Parker has failed to allege any volitional conduct on the part of Google. In Disney Enterprises, Inc. v. Hotfile Corp.78, the defendant operated the web site www.hotfile.com, where users could upload digital files to Hotfile’s servers. After upload was done, the user received a unique link to the file. The Hotfile servers would then automatically make five additional copies of the uploaded files and assign each copy a unique link. Each link acted as a locator, allowing anyone with the link to click it or paste it into a web browser in order to download the file. Third party sites, not Hotfile, spread the links that allowed persons to download the files. Hotfile made a profit in two ways. First, Hotfile charged members a fee that enabled them to download files much faster than non-members. Second, Hotfile sold “hotlinks” that allowed third party sites to post a link that, when clicked, automatically began to download the 76
422 F. Supp. 2d 492 (E.D. Pa. 2006), aff’d, 2007 U.S. App. LEXIS 16370 (3d Cir. July 10, 2007).
77
Parker v. Google, 2007 U.S. App. LEXIS 16370 (3d Cir. July 10, 2007).
78
798 F. Supp. 2d 1303 (S.D. Fla. 2011)
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file, without ever directing the person clicking the link to hotfile.com. To increase its number of members, Hotfile paid users to upload the most popular content to its servers and asked that the users promote their links. Hotfile’s affiliate program, for example, paid those uploading files cash when the file was downloaded 1000 times. The complaint alleged that, as a result of their popularity, copyright-infringing files constituted the bulk of files downloaded through Hotfile, Hotfile’s business encouraged persons to upload material with copyright protection, and Hotfile understood the consequences of its business model. The defendants filed a motion to dismiss the plaintiff’s claims for direct and secondary liability for copyright infringement. The court granted the motion as to direct infringement, invoking the requirement of Netcom that there must be some volitional act on the part of the defendant in making the copies in order to establish direct liability. Here the hotfile.com web site merely allowed users to upload and download copyrighted material without volitional conduct on the part of the defendants. The plaintiff argued that making additional copies of a copyrighted material once it is uploaded, the defendants were liable for direct infringement. Additionally the plaintiffs’ argued that by creating a plan that induced infringement, the defendants had committed contributory and vicarious infringement. The court rejecting the arguments of the plaintiffs’ alleged that the plaintiff committed a volitional act in the form of Hotfile’s making of additional copies once the copyrighted material was uploaded to its server, because courts had repeatedly held that the automatic conduct of software, unaided by human intervention, is not volitional. However, the court held that the plaintiffs had adequately established claims for inducement, contributory, and vicarious liability. Inducement and contributory infringement were adequately pleaded by the plaintiffs’ on the ground that hotfile.com promoted copyright infringement and that Hotfile took affirmative steps to foster the infringement by creating a structured business model that encouraged users to commit copyright infringement. Vicarious liability was adequately pleaded by allegations that Hotfile had complete control over the servers that users employed to infringe. Hotfile had the technology necessary to stop the infringement but refused to stop the massive infringement, and actually encouraged the infringement because the infringement increased its profits. Page | 59
3. Display right Display covers any showing of a copy of a work either directly or by means of a film, slide, television image or any other device or process. Hence, displaying of a copyrighted contents to the public without the copyright owner’s licence also causes copyright infringement, irrespective of the fact whether such display was for monetary gain or not. In Kelly vs. Arriba Soft Corp.79 the plaintiff, Leslie Kelly, a professional photographer copyrighted many of his images of the American West. Some of these images were located on Kelly’s website or other websites with which Kelly had licence agreement. The defendant, Arriba Soft Corporation operated an internet search engine that displayed its result in the form of small pictures rather than the more usual text. Arraba obtained its database of pictures by copying images from other websites. By clicking on these small pictures, called thumbnails, the user could view a large version of that same picture within the context of the Arriba web page. When Kelly discovered that his photographs were part of Arriba search, he brought his claim against Arriba for copyright infringement. The District Court found that Kelly has established a prima facie case of copyright infringement based on Arriba’s unauthorised reproduction and display of Kelly’s work, but that this reproduction and display constituted a non-infringing “fair-use” under Section 107 of the U.S. Copyright Act. Kelly appealed against the decision. The Ninth Circuit Court held that “the creation and use of the thumbnails in search engines is a fair use, but the display of the larger image is a violation of Kelly’s exclusive right to public display of his works”. Playboy Enterprises, Inc. v. Russ Hardenburgh,80 the defendants, a bulletin board owner was managing an electronic central system that stored in formation, giving home computer users the opportunity to submit information to the system to upload or retrieve information from the system to download. The owner encouraged its subscribers to upload adult photographs. It used to screen all images that were submitted to its system and moved some of the images into files from which general subscribers could download them. The court held that since the actions of the owner resulted in subscribers being able to download copyrighted images, it violated Playboy’s right of public display.
79
280 F.3d 934 (9th Cir. 2002)
80
982 F. Supp. 503 (N.D. Ohio 1997).
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In Playboy Enterprises, Inc. v. Webbworld, Inc.,81 the defendant operated a website which was subscription based where they posted nude pictures from the plaintiff’s publication. The court found the defendants directly liable as the defendants by their very act caused copyrighted contents to be displayed publically and made profits based on others work. 4. Distribution Right Distributing and displaying copyright work of another without the authorization of copyright owner amounts to infringement of copyright. In Playboy Enterprises Inc. vs. Frena,82 the defendant operated a subscription bulletin board service named Techs Warehouse BBS that distributed unauthorised copies of Plaintiff Playboy Enterprises, Inc.’s copyrighted photographs. BBS was accessible via telephone modem to customers. Once logged on, the subscribers may browse through different directories to look at the pictures and the customers could also download the high quality computerised copies of the photographs and then store the copied image from Ferna’s computer onto their home computer. Many of the images found on BBS included adult subject-matter which were copies of photographs taken from Playboy Enterprises Inc.’s copyrighted materials. The Court held that public distribution of a copyrighted work is a right reserved to the copyright owner and usurpation of that right constitutes infringement”. Similarly, in Marobie-Fl. Inc. vs. National Association of Fire Equip. Distributors,83 the defendant who was the administrator of the website placed three copyrighted clip art of the plaintiff in his own homepage. Finding the alleged copyrighted ClipArt’s and drawings on the internet, the plaintiff sued the defendant for copyright violation. The court concluded that the mere making available of the files for downloading was sufficient for liability, because “once the files were uploaded onto the Web server, they were available for downloading by Internet users and the OSP server transmitted the files to some Internet users when requested.” 5. Right to prepare derivative works A derivative work is a new, original product that includes aspects of a pre-existing, already copyrighted work. Derivative works can include musical arrangements, motion 81
45 U.S.P.Q.2d 1641 (N.D. Tex. 1997).
82
839 F. Supp. 1552 (M.D.Fla.1993)
83
45 U.S.P.Q.2d 1236 (N.D. Ill. 1997).
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pictures, art reproductions, sound recordings or translations. They can also include dramatizations and fictionalizations. In Louis Galoob Toys, Inc. vs. Nintendo of America, Inc,84 the Ninth Circuit held that a Game Genie which merely enhances audio-visual displays which originate in Ninetendo game cartridges does not constitute a derivative work because in part it does not incorporate a portion of copyrighted work in some concrete or permanent form.
3.5 Case Summary and Analysis As seen from the above cases, a person to be held liable, a person should have committed some act that directly affects the right of copyright owners, whether directly or by any means, i.e., he must have contributed to the infringement of a copyrighted materials, or has acted under the authority of his employer, to be liable for copyright violation. In case of internet service provider, liability can only arise if the internet service providers have done some direct act which has resulted in copyright infringement. For example in Napster’s case, the court distinguished MAI, noting that “unlike MAI, the mere fact that Netcom’s system incidentally makes temporary copies of plaintiffs’ works does not mean that Netcom has caused the copying. The court was of the opinion that Netcom’s act of designing or implementing a system that automatically and uniformly creates temporary copies of all data sent through it is not unlike that of the owner of a copying machine who lets the public make copies with it. While Mai System Corp. case attributes liability for copies made in RAM, Parker v. Google case held that no direct liability can be levelled against a search engine owner where the result is produced automatically. A search normally produces results based on the keywords that are feed by the users and provides a link to the user to visit the respected website, which is an autogenerated process. While, the Frena, Webbworld, Marobie-Fl. Inc, Hardenburgh and Megaupload cases principally dealt with copyright infringement due to public display and distribution rights. From the decision given by the courts in these case, it clearly opines that a network service operator cannot be held liable for copyright infringement due to the act of third party. It is essentially required that a BBS operator or web site operator should have done something substantial that proves their direct involvement act constituting infringement. It is essentially required that there is direct involvement as like in case of MP3.com case, Napster’s case, Kelly 84
964 F.2d 965, 968 (9th Cir. 1992)
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case and Marobie FL. Inc. case where copies are made wilfully by the network servers for earning profit. In these case the website owner can be held liable since their very act had some kind of direct involvement. Hence, the rational that can be deduced from all these cases is that liability arises only when there is some involvement by the infringers, whether it be direct, contributory or vicarious one. Direct involvement is deduced when some infringing act is done or intended to be done against the rightful owner of a copyright having sufficient volitional activity that injures him directly. However, the court used a very dynamic approach in Hotfile case, where it evolved the principle of inducement liability. Now, apart from direct liability, network service operators can be sued by the copyright owners if they induces the public to commit infringing activities.
3.6 Conclusion If a person performs one of the activities that is the exclusive right of the author, then the person is potentially infringing on the author's copyright. Besides this type of direct copyright infringement, people can also become liable for copyright violation if they help or abets others in committing an act which interferes copyright holders’ excusive righted granted by the statue. First, there is contributory infringement, when someone has "materially contributed" to another person's direct infringement (they've helped the infringer in some way). Another is vicarious liability, when someone benefits financially from another person's infringement, and could have stopped that infringement from occurring in the first place. Thus, essentially court have evolved various principle to safeguard the interest of the copyright owners. However, the liberal approach shown by the Courts towards internet service provider makes strong enforcement of copyright futile.
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CHAPTER 4 Impact of Digital Piracy on Economy and Employment
Summary:This chapter brings forth the impact that digital piracy can create on the economy of a country. It highlights the influence of piracy of digital contents on national and international market. It also discusses the rational for loss of job due to piracy. Moreover, the chapter provides information on the benefit a country could have with regard to tax and employment if it successful in combating piracy. Lastly, the chapter also discusses the reason for people diving into the ill habits of piracy.
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4.1 Introduction In recent era, the demand for digital products are touching the sky, mostly by the younger generation of people. The key factor for rise in pirated digital products is due to its disembodied character. The disembodiment character make these products particularly different from tangible goods. It enables making copy of it at a marginal cost of production and the ability to be delivered digitally unlike tangible goods. The digital products are very interdependent to the hardware for its storage, utility and transmission. Digital products can be distributed by two ways. One is by use of physical media which requires either optical discs containing music albums, movies computer software, or printed in paper books, etc. Another way of distributing digital content is digitally via Bluetooth, infrared, Wi-Fi Direct, which are basically direct user-to-user contacts or more broadly by television signals and the Internet. There are numerous methods of distributing digital contents using the World Wide Web, such as peer to peer networks (P2P), one click hosting services85, leech sites, streaming sites, warez86 sites or through other internet based solutions such as transfer protocol or USENET. There are again other ways of distributing pirated digital contents. Here comes the play of social networking sites for example ibibo, facebook; mail messengers like gmail, yahoo mail and chatting software like whatsapp, BBM, wechat, google talk, hangouts etc.; which allow users to attach large files and to distribute it freely across the internet. The market for pirated digital products is a very complex one, as this is not always driven by profit motive. It involves non-market factors also such as reciprocating free access to others and in some cases to gain recognition within a peer group. A by-product of this new market dynamic is that the number of suppliers of pirated digital content (many of whom who do not consider themselves as “pirates”) has exploded, making detection and response much
One-click hosting, sometimes referred to as cyberlocker, generally describes web services that allow internet users to easily upload one or more files from their hard drives (or from a remote location) onto the one-click host's server free of charge. Most such services simply return a URL which can be given to other people, who can then fetch the file later. In many cases these URLs are predictable allowing potential misuse of the service. More information available at: http://en.wikipedia.org/wiki/One-click_hosting#One-click_hosting; last accessed on 27.02.2014 85
Warez are generally unauthorized releases by organized groups, as opposed to file sharing between friends or large groups of people with similar interest using a darknet. A darknet is an anonymizing network where connections are made only between trusted peers — sometimes called "friends" (F2F) — using non-standard protocols and ports. Darknets are distinct from other distributed peer-to-peer networks as sharing is anonymous (that is, IP addresses are not publicly shared), and therefore users can communicate with little fear of governmental or corporate interference. More information available at: http://en.wikipedia.org/wiki/Warez; last accessed on 27.02.2014 86
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more difficult and costly for copyright owners and law enforcers.87 Now because of the advancement of technology, copyright owners have to contend with the suppliers who supply copyright content at a much lower price and again have to compete with the suppliers who are willing to supply or is supplying copyright contents absolutely free. Digital piracy rapidly grew in 2000 and 2001 with increasing Internet speeds and the birth of online technologies that facilitate networked file-sharing. Digital piracy, theft that occurs over the Internet, has become the largest source of IP theft in recent years. This is because products stolen digitally can be streamed instantly and illegal downloads can be replicated thousands of times and transferred around the world. 88 Apart from piracy of digital contents sold through pirated market stores, online piracy of digital contents in recent decades are creating more problems in copyright protection. To better understand the online piracy methods for accessing, downloading, streaming or uploading of digital content, it is pertinent to provide a graphical digram of the ongoing piracy methods on the Internet. As reported in Envisional Report,89 in November 2010, much of copyrighted works are distributed across the internet using different accessing channels. Below is the list of different online piracy methods used by users to acess pirareted digital contents as listed in Envisional Report.
87
Piracy of Digital Content, OECD Publishing,, OECD 2009, p. 8
Intellectual Property Theft: A Threat to U.S. Workers, Industries, and our Economy, The Department for Professional Employees, AFL-CIO (DPE); P.6; Available at: http://dpeaflcio.org/wp-content/uploads/IP-Theft-Fact-Sheet-2014.pdf; last accessed on 1st March, 2014 88
David Price, The State of Digital Piracy, Envisional, Published in 2010; Available at: http://www.teamlightbulb.com/Broadband/Price_Evisional.pdf; Last accessed on 4.3.2014 89
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4.2 Areas of Piracy and Its Impact on Economy and Employment The “core” copyright industries include sectors such as computer software, computer and video games, books, newspapers, periodicals and journals, motion pictures, recorded music, and radio and television broadcasting. This sectors primarily has the ability to create and produce large amount of copyrighted materials, which are then distributed or exhibited for generating huge revenue. As these areas have the capacity to create large volume of copyrighted materials, they also generate large revenues. In turn, they also create opportunities for people to be employed in their different sectors of operation, starting from the moment of production of the products till the distribution of those products to every corner of the globe. Hence, if the piracy hampers the growth or reduces the revenue generated by these core copyright industries, the effect can be seen directly on the person employed in its production and distribution channels. Moreover, the government also gets a large share of benefit from these copyright industries. From the sale of copyrighted contents, lot of revenue is also generated for the government as tax are levied both on the copyright industries in the form of direct tax and on the copyrighted goods in the form of indirect tax. From this, it can be understood that there exists a chain relation between copyright industries, its working force, and the government, to which the society at large is not an exception. In earlier decades piracy of contents happened by sale of contents in physical form by copying from the original contents. As such distribution was limited to an area or region. Moreover, copy so made was limited to the type of contents. But with the advancement of science and technology, copies can be created from almost any content and then be recreated in another format or stored. But when internet was made available for public use, the whole phase of distribution changed. It allowed users to connect to others and distribute contents easily. Again, when the price of internet bandwidth connection went down, it allowed more users to connect to the internet and access contents. Below are the diagrams of piracy of copyrighted contents which occurred over the internet by the two most common file sharing process, first one is by way of peer to peer (P2P) file sharing90 and the other one is of direct downloads from cyberlocker91 links. These data were taken frοm a repοrt published by Envisiοnal in 2012 in “State οf Digital Piracy” by David Price.92 Peer to peer file sharing is a categοry similar tο, but mοre specific than netwοrking, that allows users to uplοad οr dοwnlοad a cοntent file οntο οr οff an οnline service where anyοne can cοpy it. 91 Cyberlockers is a web service that allows internet user to easily upload one or more files from their hard drives (or from a remote location) onto the one-click host's server free of charge. 92 Supra Note 92 90
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Peer to Peer File Sharing
Direct Download from Cyberlocker Links
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4.2.1 U.S MARKET Although there have been ongoing pirated digital products sold by street vendors in U.S. and international cities, yet there is a sudden change in distribution of digital products by way of internet networks. In 2009, the Organization of Economic Co-operation and Development (OECD) estimated that the international trade in counterfeit and pirated products was approximately $250 billion, $50 billion more than estimates published in 2007. The OECD reports that if these items were calculated the total magnitude of counterfeiting and digital theft worldwide would be several hundred billion dollars more.93 To put these numbers in perspective, in 2007 the international trade of counterfeit and pirated goods (approximately $250 billion) was larger than the national GDP of 150 countries.94 The U.S. Trade Representative estimated that the U.S. economy lost between $200 and $250 billion in 2005 due to piracy.95 An ISPOS survey released in 2009 indicates an annual revenue loss of £531 million due to copyright theft of all kinds. In 2012, the value added by the total copyright industries to GDP exceeded $1.7 trillion ($1,765 billion), accounting for 11.25% of the U.S. economy. The total copyright industries employed more than 11.1 million workers in 2012, accounting for 8.35% of all U.S. employment, or 10% (9.99%) of all private employment in the United States. The average annual compensation paid to employees of the total copyright industries in 2012, $75,926, exceeds the U.S. average annual wage by 18%. During the period 2009-2012, the total copyright industries grew at an annual rate of 4.99%.96 As the copyright industries derive a growing percentage of their revenue from sales outside the United States, global online and physical copyright piracy, as well as market access and other stifling discriminatory barriers to doing business in various countries, inhibit the growth of the copyright industries in the U.S. and globally.
93
Organization for Economic Co-operation and Development, The Economic Impact of Counterfeiting and Piracy (Executive Summary), 2007. http://www.oecd.org/dataoecd/13/12/38707619.pdf. Lat accessed on 2nd March, 2014 94
Ibid.
95
Treverton, G.F., Matthies, C., Cunningham, K.J., Goulka, J., Ridgeway, G., & Wong, A. Film Piracy, Organized Crime and Terrorism, 2009. http://www.rand.org/pubs/monographs/2009/RAND_MG742.pdf.; Last accessed on 2nd March, 2014 96
Copyright Industries in the U.S. Economy: The 2013 Report
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4.2.1.1 Music Industry President’s Office of Management and Budget report stated that as of 2005, there was a total loss of $12.5 billion due to music piracy in U.S. In the same year, there was a loss of twelve thousand job opportunities. On an average, music piracy causes loss of job opportunities to 71,060 people involved in sound recording industry and downstream retail industries in U.S. it also causes $2.7 billion loss to U.S workers in their earnings. According to David Lowery, a musician and instructor at the University of Georgia, “The average income of a musician that files taxes is something like 35k a year w/o benefits. The vast majority of artists do not make significant money on the road. Until recently, most touring activity was a money losing operation. The idea was the artists would make up the loss through recorded music sales. This has been reversed by the financial logic of file sharing and streaming.” 97 As estimated by Recording Industry Association of America (RIAA), four out of five music files downloaded from internet are illegal downloads.98 4.3.1.2 Cinematographic Films Even the motion picture has not been an exception and is hit hard by piracy. In the year 2005, motion picture industry suffered an estimated loss of $20.5 billion worldwide. The ill effect of the piracy is that it effected employment of people both inside the motion picture industry and outside. As a result, there has been loss of 1,41,030 jobs in U.S. Employees in motion picture and related industries lost an estimated $2.7 billion in earnings because of motion picture piracy.99 4.3.1.3 Computer Software and Games As suggested by BSA in its 2010 report that there would be generation of $142 billion in GDP if the global software piracy rate cuts down to 10% within 4 years. This will also generate 500,000 new high-tech jobs along with increased tax revenue of approximately $32 billion by 2013. As for U.S, BSA estimated $38 billion increase in GDP, creating twenty five
97
Siweck, Stephen. The True Cost of Sound Recording Piracy to the U.S. Economy (Report No. 188), August 21, 2007. http://www.ipi.org; Last Accessed on 3rd March, 2014 98
Hayes, M. Joy. “The High Price of Free Music: How Illegal Downloads are Silencing Artists,” July 5, 2012. http://www.dailyfinance.com/2012/07/05/the-high-price-of-free-music-how-illegal-downloads-are-silencin; Last Accessed on 2nd March, 2014 99
Supra Note 97
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thousand jobs in IT sector if the software piracy comes down to 10 percent within 4 years by 2013. Additionally, it will also generate $6 billion tax revenues. 4.2.2 SINGAPORE MARKET Online piracy continues to threaten Singapore’s market for copyright works, especially music, movies, and television programs. The government’s response to date remains clearly inadequate, both in terms of its continued refusal to bring public prosecutions of online music pirates, and its failure to bring Internet Service Providers into a cooperative stance with rights holders to combat online piracy. 4.2.2.1 Music Industry There has been an increase in piracy of digital recrding contents via BitNetwork file sharing clients. For example, in August 2011 there were over 500,000 unique visitors from Singapore to the top 10 Bit Torrent sites. Even more noteworthy is the fact that unique visitors from Singapore to the top three BT sites i.e., PirateBay, Torrentz.eu and Isohunt.com, accounted for about 12% of the total internet audience in Singapore. Furthermore, infringing distribution hubs (or cyberlockers) continue to account for a large proportion of online infringement in Singapore. From January through August 2011, over 44,000 links to infringing material stored in cyberlockers were tracked in Singapore by the recording industry. The top 10 cyberlockers were the destination for over 90% of these infringing links, which are causing irreparable damage to the recording industry. The recorded music marketplace in Singapore is under serious stress. Sales of physical product (CDs) is in free fall, with revenues plummeting almost 50% from 2004-2008. Many labels, both international and local, as well as the major international music publishers, have drastically cut back their Singapore offices, or ceased operations there altogether. The retail market has been decimated, and wholesale operations no longer exist in Singapore. Even the weakened remaining market for CDs has to contend with pirate product, sold at makeshift stalls in bazaars and at night markets, or at tourist centers, or imported in counterfeit form from China under the guise of original parallel import products. These pirate products are usually sold from stalls at temporary trade fairs around Singapore. Because the fairs generally last only 3-5 days, it is expensive and cumbersome for right holders to file legal actions against the operators. Of course, in Singapore as elsewhere, access to music online or via mobile device is a key factor in the demise of the hard-goods marketplace. And, just as in many other markets, Page | 71
the vast majority of that online or mobile access is to infringing material. Internet music piracy has become pervasive in Singapore, as the household broadband penetration rate has soared from 42% in 2004 to nearly 100% in 2008. In this highly connected, technologically savvy city-state, online music piracy is thriving, via forum sites, unauthorized portal sites, cyberlockers, and especially peer-to-peer (p2p) file sharing. One leading Singapore ISP, StarHub, estimated that up to 42% of its bandwidth at peak hours was consumed by p2p traffic before it took steps to manage the network more aggressively. Online piracy has not only decimated the legitimate hard-goods market; it has also crowded out licensed download services and digital music stores, such as the local SoundBuzz operation, which was forced to close its doors in July 2009, unable to compete with piracy. 4.2.2.2 Cinematographic Films The Motion Picture Association (MPA) reports that Singapore has the highest incidence of per-capita P2P infringement of motion pictures of any territory in Asia, and that illicit streaming sites located outside Singapore also attract large audiences for pirate performances. MPAA notes that Peer Media Technologies reported that during 2011, users initiated over 3.7 million downloads/uploads of unauthorized copies of major U.S. movie titles via certain P2P protocols in Singapore. MPA reports that Sim Lim Square remains an active market for pre-loaded media players (containing unauthorized copies of films and TV shows) and “dongle” devices that provide delivery of Internet streaming services. Approximately 5-10 different types are being sold in Sim Lim Square. These small Internet-accessible black boxes with USB and HDMI access ports connect directly to the television which is then routed to a variety of infringing online sites (typically Chinese) containing movies, TV shows, sports programming, etc. They sell for about S$200 (US$156) and are marketed as an “alternative to expensive monthly cable television bills. 4.2.2.3 Computer Programs and Games Singapore continues to suffer from unacceptably high levels of corporate and institutional piracy of business software. This end-user piracy –the willful use of pirated or unlicensed software in the workplace -- has long been the most significant feature of software piracy in Singapore, and the form of infringement that inflicts the greatest losses on U.S. business software companies. Although the overall business software piracy rate has edged down from 36% in 2008 to 35% in 2009, corporate end-user piracy continues unabated. The Page | 72
Government continues to have an excellent record of cooperation and partnership with the entertainment software industry. Another problem is that there is a rising concern about the volume of online downloads of pirated games 4.2.2.4 Books and Journals Singapore has been a house for piracy of books mostly of U.S. book publishing companies. Publishers in Singapore are facing huge losses due to illegal photocopying of books. There has been a very few support from the local police authorities in Singapore against illegal copying and distribution of books.
4.2.3 INDIAN MARKET Indian audio cassette market is the largest in the world in terms of number of units sold. In the year 1996-97, music industry earned ₹105,605 million by selling 350 million audio cassettes and CDs. During the same period, software companies earned ₹63,100 million from sales within India and earned ₹39,000 million through export of software. As the need were more in software industry during that period, the software companies provided employment to more than 160,000 people. The publishing industry in India is no less that the audio market. 90,000 new titles are published every year by 19,000 publishers. Among these published titles, 22% is published in English language. Another most important copyright industry in India is film and video industry. Films serves the most favourite entertainment medium. As is estimated, India annually produces more than 1000 films in different languages such as Hindi, Bengali, Assamese, Bhojpuri, Telugu, Tamil, Malayalam and Kannada. Due to increasing mobile users and rise in internet connection, piracy in digital contents have become worse in 2012 for the copyright industries in India. Internet & Mobile Association of India (IAMAI) reports 150 million Internet users in India as of December 2012,100 with 12.8 million fixed broadband connections,101 and 78.7 million mobile Internet users as of October
Internet and Mobile Association of India, Vernacular Report 2012, January 9, 2013, available at http://www.iamai.in/rsh_pay.aspx?rid=avDLOK1zAI8=.; Last accessed on 1st March, 2014 100
International Telecommunication Union, Fixed Broadband Subscriptions 2000-2011, at http://www.itu.int/ITU-D/ict/statistics/material/excel/Fixed%20broadband%202000-2011.xls, accessed on January 10, 2013; Last accessed on 2nd March, 2014 101
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2012.102 Illegal downloading sites, P2P file sharing, BitTorrent trackers and indexes, streaming sites, deep linking sites, blogs, forums, and social network sites directing users to infringing files, cyberlockers used to advertise massive amounts of infringing materials, and piracy through auction sites all continue to plague right holders in India. 103 In a report IIPA listed Ukraine-based ExtraTorrent.com as a giant pirated online website and 88th most visited site in all of India according to Alexa.com. Another largest pirated hosting website identified by the Recording Industry Association of America is the exmasters.com located in the Czech Republic which is a web hosting company and is one of the biggest providers of services to BitTorrent trackers/indexing sites have administrative control of more than 150 foreign websites. The primary function of the website is to facilitate the download of illegal content, and the domain names for these websites are registered in India as well as Pakistan and elsewhere in Asia evidencing their global reach.104 As estimated by NASSCOM, software and services revenues (excluding hardware) $87 billion, reached $87 billion in fiscal year 2012, a 14.9% increase over 2011. Another recent industry report pegged the Indian film and television industry’s total gross output at US$20.4 billion, higher than the advertising industry. Employment generated by this industry is estimated at 1.83 million workers, most of whom are daily wage earners.105 4.2.3.1 Music Industry Indian music market continued to grow consecutively third time in the year 2012, with a shift from physical sale to digital sale. The reason for this growth is due to predominant mobile subscriptions and ease of access to music files and at a very less price. As Mandar Thakur, chief operating officer, Times Music, stated “the concept of daily subscription for all
Internet and Mobile Association of India, Mobile Internet in India; December 2012, January 2, 2013, at http://www.iamai.in/rsh_pay.aspx?rid=Yh0mbvBD9VI=.; Last Accessed on 1st March, 2014 102
International Intellectual Property Alliance (IIPA) 2013 Special 301: India Page 58; Available at: http://www.iipa.com/rbc/2013/2013SPEC301INDIA.PDF; Last accessed on 1st March, 2013 103
IIPA Written Submission Re: 2012; Special 301 Out-of-Cycle Review of Notorious Markets: Request for Public Comments, 77 Fed. Reg. 48583 (August 14, 2012), Docket No. USTR-20110011, September 14, 2012, Available at: http://www.iipa.com/pdf/2012_Sep14_Notorious_Markets.pdf; Last accessed on 2nd March, 2014 104
PricewaterhouseCoopers, Economic Contribution of the Indian Film and Television Industry, March 2010; Available at http://www.mpaa-india.org/press/EconomicContribution.pdf; Last accessed on 3rd March, 2014 105
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kinds of music products on mobile is well instilled in India.”106 There are over 2.4 billion Internet users in the world, of which 1.5 billion access the Internet through their mobile devices either as a primary or a supplementary device.107 India’s mobile phone market grew hugely in 2006 and has since gained more than half a billion subscribers, taking the total today to 900 million. Music plays a key role in mobile operators’ customer acquisition, branding and engagement strategies, as smartphone adoption rises. Leading operators such as Airtel, Vodafone, Idea and Tata Docomo offer a range of music services including ringtones, ringback tones, downloads and mobile radio streaming services which are usually bundled into subscription packages. Mobile radio services are evolving to offer multi-language stations and intelligent playlists. Streaming services too are beginning to take off with young consumers and an expanding middle-class driving digital consumption. Shridhar Subramaniam, President of Sony Music India and Middle East stated that “streaming services such as Gaana, Dhingana and Saavn and download stores are beginning to emerge.” Till recently, the taste of Indian people were driven by Bollywood music. This has changed now with massive exposure to global music trends by way of internet. Now the present youth culture are trending to western musical tastes along with the local musical tastes. As this developments has happened, there are speculations that India has the potential of becoming top ten global market for music industry in the years to come. However, India’s emerging music business is still struggling to compete with piracy. IFPI estimates that more than half of internet users (54%) access unlicensed services on a monthly basis in India. The music piracy rate remains extremely high notwithstanding the recent launch of many legitimate services, including Saregama, Nokia Music, Flipkart, Cyworld, 7digital, Gaana, Indiaone, Meridhun, My Band, Raaga, Radio One, Saavn, Dhingana, Artist Aloud, Telugu One, and Smashits. Indian courts have started to act to support legitimate digital and creative industries. In February 2012, the Calcutta High Court issued an injunction ordering 11 ISP’s to block access to the infringing website songs.pk. A further judgment in March 2012 ordered 387 ISP’s to block access to 104 infringing websites. IFPI estimates that with this single action, nearly 10 million internet users stopped accessing these sites. In February 2013, the courts ordered all these is ISP’s to block a further 162 websites. In the year
106
IPFI Digital Music Report, 2013, P.26
Avendus Report - India's Mobile Internet-2013, Published by Digital Media and Technology, 2013. Available at: http://www.avendus.com/Files/Fund%20Performance%20PDF/Avendus_ReportIndia%27s_Mobile_Internet-2013.pdf. Last accessed on 18.3.2014 107
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2012, music industry suffered a total loss of $431 million due to mobile device piracy rather than physical piracy, Internet piracy, public performance piracy, and radio/TV broadcast piracy. 4.2.3.2 Cinematographic Films Illegal cam-recording of cinematographic films are redistributed globally by release groups at least 32 times in the year 2012. In 2012, India accounted 53% illegal camcording for all forensic matches in the Asia Pacific region. Increased camcording incidents were observed from Ahmedabad (Gujarat), Indore (Madhya Pradesh), and Ghaziabad.108 For the motion picture
industry,
tamilthunder.com,
sites
like
tamilwire.com,
bwtorrents.com,
moviesmobile.net,
desitorrents.com,
bharatmovies.com,
tamiltorrents.net,
doregama.in,
dctorrent.com, hindilinks4u.net, and many others cause significant harm. These sites feast on the demand for local language dubs of U.S. films as well as Indian films. Pirated internet sites are rarely hosted or operated in India. They are mainly hosted or operated in Indian immigrant countries. For example, Vishal Bharadwaj's Kaminey was downloaded a record number of times (estimated at 3,50,000 times) in India and abroad. The situation is equally bad for regional language films with 88 percent of Telugu and 80 percent of Tamil films being downloaded from the internet. A study undertaken by MPDA has India among the top ten countries in the world for Internet piracy.109 There is almost no legitimate rental video market in India, since cottage pirate rental video stores dominate the market. Movie piracy hard goods remained available for open sale through street vendors who were most prominent in metropolitan areas like Mumbai, Delhi, Chennai, Kolkatta, and Ahmedabad. 4.2.3.3 Computer Programs and Games According to study conducted by IDC and Ipsos Public Affairs, there is a decline in software piracy from 69% in 2007 to 63% in 2011 accounting US$3 billion for unlicensed copies.
108
Supra Note 104, at P.59
Motion Picture Distributors Association (MPA) (Prepared by PricewaterhouseCoopers), Economic Contribution of Indian Film and Television Industry, 2010, Page 10; Available at: http://mpda.in/press/EconomicContribution.pdf; Last accessed on 4th March, 2014 109
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One of the reasons for this rate of piracy is that majority of enterprises in India are using unlicensed copies of software. However, with the efforts taken by major computer software companies, there is a gradual response by enterprises to use licensed software programs. Another major concern for software companies is that most of the assembled computers sold in Indian markets contain pirated softwares. Calicut (Kerala), Belgaum (Karnataka), Gulbarga (Karnataka), Nagpur (Dhantoli), Tilak Road (Pune), Canada Corner (Nasik), Golani Market (Jalgaon), Nehru Place (Delhi), Naza Market (Lucknow), Agra, Ludhina Market (Ludhiana) contain a tremendous number of computer resellers, retailers and assemblers selling tens of thousands of computers pre-loaded with pirated operating system software. It has been estimated that between 70-90% of all computers sold in these markets have infringing software on their hard drives. The high rate of piracy of entertainment software in India is made possible by the widespread availability of circumvention devices used to bypass TPMs, with vendors openly selling circumvention devices on the Internet, in retail stores and kiosks, or selling game consoles that are already modified..110 IDC in the year 2010 conducted a survey which was sponsored by BSA, entitled Piracy Impact Study: Economic Benefits of Reducing Software Piracy, where it was found that if India’s piracy in softwares decreased 10% in 4 years, it would US$4.7 billion in GDP and $512 million in tax revenues. Alternatively, it will also generate approximately 60,000 employment opportunities in IT sectors. The benefits would be even greater if the ten point reduction was achieved in two years, yielding $6.1 billion in GDP and $676 million in tax revenues. 4.2.3.4 Books and Journals All kinds of books whether scientific, technical, medicinal or professional books are continuously being photocopied at nooks and corners in India. Same is the case with scholarly journals and textbooks. In recent times, there is an increase in piracy of these books through online downloading and copying of contents. Moreover, there is a trend towards making compilation and selling of course related materials in relation to textbooks for educational institutes.
110
Supra Note 104, at Page 60
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Another problem which is affecting copyright owners is that the books which are made available for sale only in India at a cheaper price are exported in other countries like Africa, the U.S., the United Kingdom, and other European markets. 111
4.3 Survey carried out by the Researcher To check the ground reality, the researcher planned and administered a survey. During the survey the researcher asked a number of questions through a structured questionnaire which were directly or indirectly aimed at finding the most common area of piracy. The survey was both a telephonic survey and face-to-face interview survey. It was conducted by the researcher upon 100 people from India comprising different age groups during 15th January, 2014 to 14th February, 2014. The target groups comprised of students, workers, employees, businessman, sellers and professionals’ like doctors, engineers, lawyers, bank officers and also retired persons. It was found by the researcher that it was not only the young people who were to be blamed for copyright violations but also the elder generations for facilitating in copyright violations. This survey was conducted upon people of different walks of life to get a general overview of the situation in terms of copyright. In each age group, 20 people’s data were taken by the researcher to analyse the facts and to find a rational behind the acts done by these people. For the list of question put forth by the researcher, please refer to Appendix 1. While collecting the data on piracy, the researcher had excluded the works which were legally obtained, such as music files downloaded through itunes, nokia music stores, etc. The responses of the people are provided in Appendix 2. Figure.1 represents the level of piracy in digital contents in different age groups and Figure.2 represents the most interested areas of pirated contents according to different age groups.
111
Supra Note 104 at Page 61
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COPYRIGHT INFRINGEMENT
Figure 1
Age 12-17 9 8 7 6
8 8
8 8
Age 26-35
Age 46 & Above 8.5
6.5 5.5
Age 36-45
8.5
7
6 5
4 4
3.5
3.5
3
2.5
3
8
6.5 6.5 6
5
5 4
Age 18-25
2
2
2.5
2
3
2.5 2.5
1.5
1.5
Images
Books
1 0
Music
Movies
Computer Games
Computer Software
Age 12-17 9 8 7 6 5 4 3 2 1 0
Figure 2
Age 46 & Above
Age 36-45 Music
Movies
Computer Games
Age 18-25
Age 26-35 Computer Software
Images
Books
In the age group of 12-17, it was found that there was a maximum inclination of children and the adolescents towards movies, music, computer games followed by computer software, movies and then the music. Adult images were also downloaded by the peoples of this age group to a very large extent. Movies and music were considered the most entertaining area both among boys and girls, irrespective of any class differences.
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From upper middle class to the upper class families, it had been seen that boys prefer computer games more than movies. As a result, in this age group, there was a maximum violation of copyrighted games and secondly few selected computer softwares. However, movies and music were no exceptions. There was mostly barter system prevalent among students in relation to distribution of digital contents; i.e. on the basis of ‘give and take’ relation. In case of lower economic families within the same age group, movies were the most interested phenomenon and because the original cost of movies were far more costly than the pirated ones, everyone opted for the pirated Cd’s and DVD’s. A newly released movie which was couple of days old, were sold for ₹50 a DVD where people also got three other movies which were a month old. Again in case of movies, which were more than a month old was sold at a price of ₹20 per DVD. In case of middle class families, pirated movies were also brought because they can watch the movies within a few days’ time after the release, again and again. Another cause for such raise in pirated movies was because of the fact that in small towns, there are no theatres or there were theatres which played old movies and not the recent release and in some cases women and youngsters were not allowed to go out in theatres at all. Another reason was that the tickets for movie theatres cost for at least ₹60 per person for watching a newly released movie for a single time, while on the other hand the same movie could be seen by the entire family by paying ₹50, which was very economical for them. Moreover, children in this age group often bought adult movies, irrespective of any class, from pirated local stores since they were not able to buy it from websites or could watch it due to parental controls over the computers. In the second category, there was a shift of interest. This age group of 18-25 were the maximum violators of copyright in cinematographic films, music and image files. However, the class variation was a great factor in determining copyright infringement. In upper class economy, few movies were infringed by way of downloads while in the lower economy class, the result is vice-versa. Almost every cinematographic films were pirated copies or were rented copies of the original. In both upper and lower class, music files were infringed. Adult images were mostly downloaded and or copied in this age group. Books were photocopied mostly in this age group compared to all age groups. In the age group of 26-35, music files formed the main area of copyright violations, followed by cinematographic films and images. Copyright violation in books, computer software and games were very negligible compared to others. Page | 80
In the age group of 36-45, it was observed that very few people actually infringed upon copyright contents, except for music files and to some amount of cinematographic films. However, this age group commited infringing activity by facilitating others to commit copyright violations or for the love of their dear ones. By lending their children money; i.e, by providing monetary support to children to buy pirated copyright contents or buying copyright contents as a reward for boosting children to do better in academic curriculum, the people in this age group commited copyright violation. This in turn had made computer games a key area of copyright violation at this age. The lower income family people who cannot afford to buy books for their children, opted to take photocopied books which cost 1/3rd of the actual price of the books. Lastly, the age group of 46 and above, could be attributed as the one where there was no involvement of people in violation of copyright in any of the areas, except for those people who were into such business and in few cases for the love and affection for their dear ones. Thus, from the above survey, it can be deduced that with the cost of computers going down and also because of the availability of computer hardware at a cheaper rates, there has been a rise in computer buyers, whether there is a need or not. Mostly, computers serves as a means of entertainment in most of the households. Government too are distributing computers to students in some parts of India, like Assam. Thus, in the last seven years the number of computer buyers have increased many-fold thereby creating a menace of copyright violation in computer softwares and games. The most favourite operating software is the Microsoft Windows and Office Application. Where computers are distributed freely by the government with operating system linux installed in it, it is found out that 9 out of 10 people replaces Linux operating softwares with pirated Microsoft Operating Software and Office Applications. Even the assembled computers are loaded with pirated copy of Microsoft Operating Softwares. Moreover, some people buy computers with free DOS as they cost less than the computers loaded with original operating software. Installation of operating softwares are very easy and takes hardly 30 minutes depending on the type of hardware installed on the computer. The price of the Operating software vary depending on the version people wish to buy. For Windows XP, the pirated cd costs only ₹ 100 and for the newer version like Windows 7, it costs ₹ 250 as this has also become unpopular with the recent introduction of Windows 8.1 which sells for ₹ 500. Since this operating software is very user friendly, it brings more devastating part for computer games which are widely supported by this operating software. In case of games, it is found that Page | 81
the almost everyone use the pirated games since the price of the games are very high and in most cases parents do not provide money or cannot afford the high prices of a game. The pirated games cost 1/6th of the price of original games and also the torrent site provides new games after some days of its release. The cracks can be then circulated to all the fellow friends which are very small files. Again there also exists barter trade in case of computer games and software where people circulate their games and software for other games and softwares. In below middle class families, there is a complete change. Here the children are mostly inclined to science-fiction, thriller and adventurous movies. Since, the children are in their adolescent’s period, they also are very much inclined to buy adult movies. These movies are brought from pirated stores or are download by P2P file sharing process, mostly outside houses, which gets circulated because of the craziness of the children to explore new developments in them. Close friends, whether it is a boy or girl, distribute these contents often secretly among their peers. In upper class families, there is very few copyright violations as they tend to buy original digital contents, however there are still people who downloads pirated copyright contents from torrent websites. These downloads are mostly computer games, software, movies and music because of ease of accessibility and also because of the fact that the contents are available for free. The youngsters are also very fascinated by music which have earned top rating and downloads them to become famous among friends. As a result others who do not have the same songs ask for the songs and then the sharing happens via Bluetooth, Wi-Fi-direct, whatsapp, line, etc. which involves more circulation of the copyrighted music. The rise of music piracy can very well be attributed to increase of mobile phone users and low cost internet data plan. Those have internet plans activated on their phone, downloads music file as they consume very less data, varying on bits rate of 92kbps – 320 kbps, which are 900 kb to 9 Mb size; hence can be downloaded with slow internet speed. Others who do not have internet connection can buy music files from different internet café shops, which cost ₹ 50 for 2GB of music files. These internet café shops are present all over India. Books and journals are also photocopied in photocopy center by upper middle class, middle class and lower class people for the sake of saving extra money as the quality of photocopying are much alike the original books. It is mostly seen that books which are priced more than ₹ 1000 are being photocopied by the upper middle class, and the books which priced more than ₹ 500 are photocopied by the middle class families. While in the lower class, except Page | 82
for the books distributed by the government freely are photocopied or any books which cost more than ₹ 250 are being photocopied or are borrowed by the people. This is very much common in the age group of 14-20 years. After they have entered for graduation, which involves greater references of books, it has been observed that all the students, irrespective of the class, photocopies all the chapters of the books which they feel necessary except for a few books, which are either made available by the college through library or which has been prescribed as the most important book or the book which covers almost all the curriculum of the course. This has become a universal practice throughout India. In case of medical students and engineering students, photocopying is very rampant as the books are very costly and everyone cannot afford to buy such costly books. Here the researcher answers the second question of the research. Thus, from the survey it is evident that majority of the people are unaware of the fact that they are violating a statue which is meant for protection of copyright owners. Others who know the fact, does it without any fear, as they are of the notion that they cannot be caught for such activity. While others believe that it is not illegal to do so as the contents are available for downloading freely, and if any wrong is done, the person providing the contents on the web are to be punished and not them. Some people believe that copyright protection is some kind of tax which is levied on the goods and hence are not willing to pay as the government has not been able to meet out the promise it has made to people. It is most likely a protest against government. These points are dealt in more details in Chapter 6.
4.4 Conclusion The first and the main cause of increasing digital piracy is the computing power and internet facility. This has led to easy reproduction of a digital content without any distortion to its qualities. Moreover, it facilitates dissemination of these digital contents across any human made barriers within a fraction of seconds and are easily available for the public to download it often free of cost. For example, with the population of India crossing 1.2 Billion, the number of computer literates in India has increased to around 224 Million and the number of internet users has increased to 150 Million as of December 2012. This takes the penetration of Internet in India to about 12%.112 Secondly, high rate of taxation and cost levelled on softwares, games, music and movies has aggravated the situation. Thirdly, low economic income in countries like Research Reports: Internet and Mobile Association of India; Available at: http://www.iamai.in/rsh_pay.aspx?rid=avDLOK1zAI8=; last accessed on 1st March, 2014 112
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India cannot afford to buy these copyrighted content because of high prices and always tends to pirated products. Fourthly, weak enforcement is also responsible for protection copyright works and the contents are being distributed openly in the markets. Even the jurisdictional issues has led to weak level of enforcement. Fifthly, Internet has facilitated in easy dissemination of contents within a fraction of seconds and as a result the quick easily accessibility has made it a great problem to tackle copyright piracy of contents. Thus, more action is needed to tackle other unlicensed sites to enable emerging licensed services to grow.
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CHAPTER 5 Enforcement and Challenges
Summary:This chapter deals with the enforcement of copyright laws. It discusses the remedies available to copyright holders against the person who infringes their exclusive right. Moreover, it deals with the initiatives taken by the government and copyright owners for enforcement of copyright. It also discusses the problem in enforcement on world-wide copyright piracy because of jurisdictional issues. Lastly, the chapter also discusses the acts which fall outside the scope of copyright infringement and the safe harbor available to the network service providers under the copyright laws. It discusses the duties with respect to network service providers, which they should observe to take the benefits of safe harbor provision.
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5.1 Introduction With each phase of technological development in early 80’s, copyright laws underwent a change as the law itself was growing on the same footing as that of the technology. As technology brought new change, copyright law also was amended to include those technological advancement within its scope and methods to enforce it in case of any violation by means of such technology. But those technological development can little be compared to now a day’s internet usability and the facility it allows to its user. The earlier technological developments could be controlled effectively by the copyright laws as those developments can influence people within the limited territory. But unlike other technological developments, internet has created problems for the law makers to adapt the copyright law since the traditional footing of the copyright law was based on territoriality. While internet on the other hand has out crossed the boundary limits of the country bringing the whole world together. Moreover, present days sophisticated technological development along with the capability of using internet have out-thrown the legal developments to a great extent. However, law is keeping up to the change and even in this juncture of technological advancement, it is protecting the rights of copyright holders.
5.2 Enforcement of Copyright Laws 5.2.1 Enforcement in United States of America The U.S. Copyright Law provides relief to the owner of copyright by both civil and criminal process. In case of a civil action, the owner of copyright has a right to claim injunction as provided under Section 502, impounding and disposition of infringing articles under Section 503, damages and profits under Section 504, along with costs and attorney fees under Section 505. Section 506 makes infringement of copyright protection as a criminal offence. Any person who wilfully infringes the exclusive right of the copyright owner is liable to be punished as per the provision of Section 2319 of Title 18, U.S Code. As due to the development of technology, it became necessary to bring a piece of legislation to serve the interest of the copyright owners. The United States of America has extended its copyright law and enacted the Digital Millennium Copyright Act (DMCA) which came into force in 1998. The DCMA added Section 512 specifically to the Copyright Act which brought forth the limitation of liability on the service providers in case of online copyright infringement. This part is discussed below under Fair dealing and Safe Harbour Provision. Page | 86
Section 1201 prohibits circumvention of technological measures used to protect copyrighted works. As per the provision of the DMCA, no person should manufacture, import, offer to the public, provide, or otherwise traffic in a technology, product, service or device that is used to circumvent any technological measures used for the protection of copyright. Again the DMCA also added digital right management information for the protection of information on a copyright content. Under Section 1202, DMCA prohibits interference with the integrity of copyright management information. Section 1202(a) prohibits knowing dissemination of false copyright management information, if done with the intent to induce, enable, facilitate, or conceal copyright infringement, while §1202(b) prohibits the intentional removal of copyright management information and the dissemination of works from which the copyright management information has been removed.113 DMCA provides both civil and criminal remedies for the violation of rights granted under Section 1201 and Section 1202. Section 1203 provides civil remedies and it empowers the Court to grant temporary and permanent injunction. The Court has also power to order for impounding or may award damages, and in its discretion recovery of costs to the parties along with attorney’s fees. Section 1204 of DMCA provides criminal remedies. If any person wilfully circumvents any Technological Measures for protection of copyright or does any act which violates the provisions relating to Right Management Information as provided in Section 1201 and 1202 respectively, then the person is liable for imposition of a fine of not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and for any subsequent offence, the imposition of fine is upto $1,000,000 or imprisoned for a maximum period of 10 years, or both. 5.2.2 Enforcement in India For the enforcement of copyright in digital goods, the Copyright Amendment Act, 2012, extended the meaning of copyright by re-drafting some sub-sections of Section 14 and hence making any work stored in any medium by electronic means to have copyright protection. The right to store the work is of particular importance in a digital environment due to the special nature of transmission of digitised works over the Internet where transient copies
Michael Nwogugu, The economics of digital content and illegal online file sharing: some legal issues, Computer and Telecommunications Law Review 2006; available at http://login.westlawindia.com.ezproxy.symlaw.ac.in/maf/wlin/app/document?&srguid=ia744d05e000001441f2e d43ab6f59068&docguid=IA84C65F0E75011DAB6EDAFAEBAD7D114&hitguid=IA84C65F0E75011DAB6E DAFAEBAD7D114&rank=5&spos=5&epos=5&td=4000&crumb-action=append&context=16&resolvein=true; Last Accessed on 5th March 2014. 113
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get created at multiple locations, including over the transmitting network and in the user’s computer. Section 51 of the Copyright Act deals with infringement of copyright and provides that there is deemed to be infringement when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights uses the work in a way that is prohibited in the Act. It does not specifically mention the liability of service providers or refer to the online infringement or online piracy per se. The Copyright Act provides for both civil and criminal remedies under Section 55 and Section 63 respectively. The owner of copyright114 can claim injunction, damages, and accounts of profit or otherwise as are conferred by the law for the infringement of a right along with cost of all the parties in any proceedings in respect of infringement of copyright. In cases of criminal remedies, any person who has knowingly infringed or abetted in the infringement of a copyrighted work would be liable for an imprisonment for a tern not less than six months but may extend to three years along with a fine of not less than fifty thousand rupees but which may extend to two lakh rupees. It also provides for knowingly using an infringing copy of computer programme to be an offence and enhanced punishment for second and subsequent offences. Section 64 of the Copyright Act authorises police officer not below the rank of subinspector to seize infringing copies of any work. This section provides that if a police officer, if he is satisfied that any person knowingly infringes or abets infringement of copyright in a work or resale an original copy of a work without sharing the resale price with the author, then the police officer can seize such infringing copies without any warrant. The power given to the police officer is very wide, since he can take action even if the act is likely to be committed. Moreover, Section 65 A facilitates a copyright owner to protect his work by means of technological measures. If any person with intention of infringing any right, circumvents an
114
The expression "owner of copyright" shall include-
(a) an exclusive licensee; (b) in the case of an anonymous or pseudonymous literary, dramatic, musical or artistic work, the publisher of the work, until the identity of the author or, in the case of an anonymous work of joint authorship, or a work of joint authorship published under names all of which are pseudonyms, the identity of any of the authors, is disclosed publicly by the author and the publisher or is otherwise established to the satisfaction of the Copyright Board by that author or his legal representatives. Section 54 of the Copyright Act, 1957.
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effective technological measure applied for protecting such right, he would be liable for imprisonment which will extend to two years along with a fine. Section 65 B provides protection of right management information. If any person knowingly removes or alters right management information, or distributes, broadcasts or communicate to the public without any authority, copies of any work or performance knowing that such information has been removed or altered without authority, he would be liable for imprisonment which will extend to two years along with fine. Moreover, Indian Penal Code and the Information Technology Act further provides remedies to the copyright owner. For example, there are many pirate websites on internet which make software available for free download or in exchange for uploaded programs. The webmasters of these websites are punishable under Section 120B IPC r/w Sec 63 of Copyright Act as they are part of the conspiracy by way of abetting copyright violations and enabling people to gain access to copyrighted software. Those people who are abetting infringement (like the webmasters & the illegal replicators) as well as those who are using pirated software are doing so knowing fully well that they are causing wrongful loss or damage to the copyrighted owner. They are also diminishing the value of such software by making illegal copies. All such people are committing offences under Section 66 of Information Technology Act, 2000 and are therefore punishable under Section 66 of the Information Technology Act. Apart from prosecution under Section 66 of IT Act, 2000, all the accused who are providing assistance to any person to facilitate access or those who are illegally downloading / copying / extracting software are also liable to pay damages to the affected party as per section 43 of the IT Act, 2000. The Modus Operandi like Client-Server overuse, Hard-disk loading, Preinstalled software and End-user piracy are generally adopted by companies or firms or by an association of individuals. In such cases the company/firm as well as its in charge are liable under section 85 of the Information Technology Act, 2000. In India, the copyright law does not deal with online service providers in express terms. Provisions relating to ISPs are specifically legislated in the Information Technology Act, 2000 (IT Act) where an ISP is referred to as a ‘network service provider’ meaning an intermediary.115 Copyright Act, 1957 also makes ISP’s liable for copyright infringement, and the Information Technology Act, 2000 further provides remedies to the copyright owners. t. Again
115
Information Technology Act, 2000, Section 79 Explanation (a).
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the Information Technology Act, 2000 fixed the issue of liability on ISPs has been addressed by Section 79. This exempts the service provider from liability in a few cases and states that the network provider cannot be held liable for transmission of any kind of information or data by any third party. Further, it defines the term ‘intermediary’ as ‘any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message’.116 The definition of ‘intermediary’ is intended to include both professional and nonprofessional intermediaries and the words ‘or provides any service with respect to that message’ further enlarges the scope of the word ‘intermediary’.117 The IT Act refrains from creating any classification of ISPs while subsuming all existing categories of ISPs under Section 79 irrespective of their functions as an intermediary. The issue of fixing liability on ISPs has been addressed by Section 79 of the Information Technology Act, 2000. This exempts the service provider from liability in a few cases and states that the network provider cannot be held liable for transmission of any kind of information or data by any third party. Further information about due diligence is discussed in later part. 5.2.3 Enforcement in Singapore Copyright Act of Singapore provides both civil and criminal remedies to the owner of copyright. Civil remedies are provided in Part V, where a copyright owner can bring an action for an infringement of the copyright and can claim relief from the court by means of an injunction, damages; account of profits.118 Criminal remedies are provided in Section 136 where a person, if knowingly makes for sale or hire; sells or lets for hire, or by way of trade offers or exposes for sale or hire; or by way of trade exhibits in public, during the subsistence of copyright would be punishable with a fine not exceeding $10,000 for the article or for each article in respect of which the offence was committed or $100,000, whichever is the lower, or for imprisonment for a term not exceeding 5 years or to both. Further, if any infringing goods are imported for the for the purpose of selling, letting for hire, or by way of trade offering or 116
Information Technology Act, 2000, Section 2(w).
Sharma Vakul, Information Technology Law and Practice, 2nd Edition; Universal Law Publishing Co Pvt Ltd, New Delhi, 2007, 18-19 and 191-192 117
118
Section 119 of Singapore Copyright Act, 1987
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exposing for sale or hire, the article; distributing the article for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the owner of the copyright in the work; or by way of trade exhibiting the article in public, the person importing such goods would be liable for a fine not exceeding $10,000 for the article or for each article in respect of which the offence was committed or $100,000, whichever is the lower, or for imprisonment for a term not exceeding 5 years or to both. To cope with the menace of digital technology and to hinder the process of infringement in digital works, Singapore Copyright Act included Part XIII and Part XIIIA. These Parts deal with the provisions relating to Right Management Information and protection of technological measures for the protection of copyright works respectively. If any person destroys the right management information contained in any works then the court may grant relief in the nature of injunctions, damages, and if statutory damages is being claimed, then damages can be granted to an extent of $20,000, or can even order for delivery up and destruction.119 Similarly, if any person circumvents any technological measures, then the court may grant relief in the nature of injunctions, damages, and if statutory damages is being claimed, then damages can be granted to an extent of $20,000, or can even order for delivery up and destruction.120 Part IXA of the Copyright Act (Cap 63) provides immunity to network service provider. According to the Chapter, a network service provider does not infringe copyright in any material by carrying out its services to enable users to have network access to the Internet. A network service provider shall not be subject to any civil or criminal liability under any rule of law in respect of third-party material in the form of electronic records to which he merely provides access if such liability is founded on the making, publication, dissemination or distribution of such materials or any statement made in such material; or the infringement of any rights subsisting in or in relation to such material.
5.3 Initiatives taken by USA On July 6, 2011, some of the world’s largest entertainment companies, including Disney, Paramount, Warner Brothers, and Universal, as well as the MPAA and RIAA, entered into a historic agreement with the most prominent Internet service providers (ISPs), including
119
Section 261 of the Copyright Act, 1987
120
Section 261 F of the Copyright Act, 1987
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AT&T, Verizon, and Time Warner. Their agreement created the Copyright Alert System. Under the system, copyright owners will be able to inform ISPs of the IP addresses of suspected infringers, and ISPs will then act on their own to impose a graduating series of sanctions on their subscribers, up to and including slowing connection speeds or suspending Internet service. ISPs began rolling out Copyright Alert System in late 2012 and early 2013.121 With the rapid growth of technology, it is imperative that laws keep pace with changing needs. Recently, to safeguard the interests of copyright holders, a bill, namely, the Stop Online Piracy Act (SOPA) was brought to the table. It aimed at eliminating all such foreign websites which encourage illegal downloading and infringement of copyrighted material. It also gave a Judge the power to rule on matters pertaining to legitimacy of a website and issue a court order to block the same if required. Representative Lamar Smith, who had introduced the SOPA Bill claimed that the intent behind this legislation is to prevent people indulging in piracy from generating profits and harnessing the interest of an industry that contributes to almost 60% of US exports, rather than curbing the use of Internet as a form of communication. The opponents of the Act have pointed out certain flaws that might be detrimental. SOPA targeted only the website and not web users. In case of any illegitimacy, a website can be struck down by a court order, with no opportunity being provided to the website, like in the case of gradual response. Furthermore, the ISPs were required to create a system in which one can easily identify any such activity that occurs and what was to be noted was that this system would differ for all networks. Lastly, it caould be contended that in the course of identifying activity that is unusual there might be deep packet inspection which might conflict with users’ right to privacy. Also, the USA was a party to the ACTA, an international trade agreement initiated by Japan and USA in 2006 to protect intellectual property by conferring certain rights and corresponding duties on the countries that ratify it. It had been in the pipeline for a long span of time and undergone metamorphosis with different countries giving it their perspective. By 2010 it was brought to public attention and a conference was held in the USA constituting law professors and organisations who expressed their concern with regard to this agreement and requested President Obama to put on hold any further discussions on it.
Rachel Storch, 16 STAN. TECH. L. REV. 453 (2013), Available at : http://stlr.stanford.edu/pdf/copyrightvigilantism.pdf, last accessed on 17.04.2014 121
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5.4 Initiatives taken in India The Kerala Anti-piracy Cell is a commendable initiative by the State Government where the Cell functions under the state’s CBCID ( Crime Branch Crime Investigation Department) as a central unit to coordinate collection of intelligence, creation of data bank, coordination of investigation and direct investigation of crucial crimes to trace out their origin and also web distribution. The object was to curb the menace of piracy in the Malayalam film industry which was incurring heavy losses owing to tax evasion and royalties. The Cell has been successful in detecting cases throughout the state as on date. They have laid down certain warnings in public interest for the public at large, Internet subscribers, cable TV operators, mobile shop owners and CD/DVD distributors across the state of Kerala. Adobe Systems Inc also launched one of its largest initiatives to battle software piracy in India. They are working in collaboration with local law enforcement and government authorities across India. The object is to avert rampant piracy of software which results in a worldwide loss of US$ 47 billion every year. Having enforced over 25 civil actions in major cities, Adobe is setting a trend for the big corporations who look at India as a potential market but fear the growing cases of piracy. Likewise, the United States Business Council launched the ‘Bollywood-Hollywood Initiative’ (the world’s largest film industries in terms of volume and revenue respectively) with the Federation of Indian Chambers of Commerce and Industry (FICCI). Their initiative, in the form of a ground-breaking survey, determined the true cost of piracy and counterfeiting to the Indian Entertainment Industry; a push to ensure India’s adoption of Optical Disc Legislation to combat piracy; a campaign to raise public awareness of the detrimental effects of piracy on India; and a drive to US-India governmental cooperation in combating international, cross-border piracy - particularly of Indian films in the US and other countries as well as US films in India. On Apr. 11, 2011, the government of India had issued a notification mandating that an ISP, like other intermediaries, should “protect and preserve copyright of other persons and remove any violating material from the Internet so that the same is not circulated without license or authority.”122
R. M. Vijayakar, Indian Music Industry Wins Battle Against Digital Piracy, India West, Apr 10, 2012, Availabe at: http://www.indiawest.com/news/3933-indian-music-industry-wins-battle-against-digitalpiracy.html 122
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The Government approved a scheme to implement an anti-piracy initiative in the audiovisual sector under 12th Five Year Plan and the Ministry of Information and Broadcasting has an outlay of `2 crores for the Plan period 2012-17. Though the FICCI-KPMG shows that the figures of piracy have declined in comparison to 2011, the piracy markets still account for 600700 million unit sales of DVDs each year and one of major factors is the increased competition within the sector. Some of the activities planned by the Government under the Plan are as follows: (a) Campaign against piracy through audio-visual, Internet and print media and a dedicated web portal; (b) Training programmes and workshops to sensitize police, judicial, administrative officials, 21 multiplex and cinema hall owners about the Copyright Act; (c) Research on effects of piracy and develop public-private strategies to combat it; and (d) Inclusion of anti-piracy awareness material in the curriculum of the schools and colleges, road shows/street plays/documentaries for creating awareness. Another initiative in India was taken by, BSA in November 2011. It launched a new global program to certify enterprises that meet International Organization for Standardization (ISO) standards for Software Asset Management (SAM) – the “Certified in Standards-based SAM for Organizations (CSS(O))” program. Much of Indian enterprises were certified or are in the process of obtaining this certification that would recognise them as implementing SAM best practices. Moreover, BSA and the Department of IT issued a joint report in November 2011 on establishing a plan to promote SAM best practices in government and private enterprises with collaborative efforts between government and industry. Both of these efforts were intended to offer a promise to curve out unlicensed software uses by enterprises. India has acted in furtherance of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) by incorporating provisions relating to Technological Measures in Article 11 of the WCT and Article 18 of the WPPT and Rights Management Information in Article 12 of the WCT and Article 19 of the WPPT respectively in the Copyright Act (Amendment), 2012. The intention of the legislature is to curb the rampant piracy practices prevalent in the country and also provide copyright owners with technological measures that are an effective means of enforcing their rights in the digital age. Page | 94
5.5 Initiatives taken by Singapore IPOS has been putting emphasis on public education to cultivate an IP-savvy and respecting population, through its flagship outreach initiative, the Honour Intellectual Property (HIP) Alliance. Recent initiatives include a Facebook Connect video application to engage the online community and an outreach to 150 primary schools using an interactive skit to introduce students to the concept of honouring intellectual property from an early age. The annual World IP Day 2013 event, meant to heighten the public awareness and respect for IP, was wellattended by more than 1,000 members of the public. These outreach activities are complemented by the IP Academy’s training courses on copyright for students and professionals in relation to the online environment. Moreover, The Ministry of Law and other agencies are currently deliberating the role of site blocking as a measure to help counter the ease of accessing copyright infringing material online.123 Recently, on April, 2014, the Ministry of Law issued a public consultation proposing amendments to the Copyright Act aimed at addressing online piracy. The amendment proposes to allow rights holders to apply directly to the Courts for injunctions to prevent access to pirate sites without having to first establish ISPs’ liability for copyright infringement. The applications for injunctions must be made by rights holders or their exclusive licensees to the Courts.124
5.6 Challenges in Enforcement Issues of jurisdiction and sovereignty have quickly come to the fore in the era of internet and digital contents. The Internet connects more than 20,000 computer networks in 130 countries. Thousands of different computer types exists within this internet network.125 The internet does not take into account geographical and jurisdictional boundaries, but internet users remain in physical jurisdiction and are subject to laws independent of their presence on the internet. As such, a single transaction of digital content over the internet may involve the Oral answer by Senior Minister of State for Law, Indranee Rajah, to Parliamentary Question on online piracy, Posted on Parliamentary speeches and responses in Ministry of Law on 21th October, 2013; available at: http://www.mlaw.gov.sg/news/parliamentary-speeches-and-responses/oral-answer-by-sms-on-onlinepiracy.html, Last accessed on 15.03.2014 123
See Andy Leck and Yew Kuin Cheah; Public consultation on proposed amendments to the Singapore Copyright Act; April 2014; Available at: http://www.singaporelawwatch.com/slw/index.php/component/cck/?task=download&file=attached_document& id=39999&utm_source=web%20subscription&utm_medium=web&src=commentaries; Last accessed on 19th April, 2014 124
125
Dr. R.K.Chaubey; An Introduction to Cyber Crime and Cyber Law; Kamal Law House; 2008, P. 40
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laws of atleast three jurisdictions, viz. the law of the nation in which the user resides, the law of the nation where the server hosting the transaction is located, and the law of the nation which apply to the person or the business with whom the transaction takes place. So a user in India downloading a copyrighted content illegally from the web server of Singapore being uploaded by a person residing in United States could theoretically be subject to the laws of all the three countries as they relate to the transaction that happened. Jurisdiction is an important aspect in determining the authority of the court to decide a particular matter presented before it. If a court does not have jurisdiction or if a Court pronounces its judgment ousting its jurisdiction, such decision stands void ab-initio. The verdict given by the court having jurisdiction can ensure the proper enforcement of its decision. Moreover, only the generally accepted principles of jurisdiction would ensure the courts abroad also ensure the orders of other judicial bodies.126 Indian copyright law is limited in nature, since the jurisdiction available to the court for entertaining copyright issues is limited to the whole of India. 127 However, this restriction is done away with as the copyright law when read with Information Technology Act provides extra-territorial jurisdiction.128 For example, if any person commits an infringing act, like unauthorised downloading of digital contents from outside the local limits of India which violated the right holder’s exclusive right, the same person can be held liable for copyright violation and the court will have jurisdiction to try the suit. This can be possible, because such illegal downloading become an offence under Section 43 of the Information Technology Act and also a copyright violation under Section 51 of the Copyright Act, 1957. Since copyright act is limited it cannot extent, however, the Information Technology Act extends to any acts committed outside India and treats as if the same act has been done inside India. Similarly, the United States of America has a very limited scope of jurisdiction since the copyright itself is limited to the territory. However, the United States evolved the concept of personal jurisdiction to try cases outside its local limits. The court has to determine three
Nandan Kamath, Law relating to computers, internet and ecommerce, Universal Publication Co. Pvt. Ltd. 2009, P.20 126
127
Section 1 (2) of the Copyright act, 1957
It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention thereunder committed outside India by any person.- Section 1 (2) of the Information Technology Act, 2000. 128
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things to grant personal jurisdiction. First, whether or not the act was committed intentionally. Second, if the act was directly aimed at the plaintiff in the forum state and finally, whether or not the defendant suffered damages in that state. If the court can find all three of these tests to be true, then personal jurisdiction can be granted. For example: in Graduate Management Admission Council v. Raju,129 the defendant Raju was a citizen of India who sold "official" past Graduate Record Examinations (GREs) to U.S. customers that were of dubious origin and in violation of the plaintiff’s, Graduate Management Admission Council (GMAC). These exams were advertised and sold over the Internet. The defendant never made an appearance on U.S. territory depriving the plaintiffs of one easy avenue of obtaining in personam jurisdiction over the defendant. The court described the jurisdiction it exercised over Raju's conduct of selling illegal copies of the exams to potential purchasers in several states within the territory of the U.S. as "targeting" the U.S. market for U.S. purchasers. Under these circumstances, the court found that personal jurisdiction was proper under a theory of national jurisdiction because the defendant had targeted the U.S. at large from outside of the territory and intended to avail himself of the opportunity of selling test answers to a U.S. graduate school entrance test to his most likely customers that were Americans. A judgment was issued against the defendant Raju who defaulted by never making an appearance to the district court where he was being sued. There are numerous cases in Singapore involving infringement of copyright and related rights through unauthorised production of or dealings with music recordings, videos and film, or computer software. It is also an offence for a company to install pirated software on its machines. Singapore’s copyright law extends only to the territorial limits of Singapore. However, Computer Misuse and Cybersecurity Act, 2007 extends the jurisdiction of the Court. Section 11 extends jurisdiction of the Court on any person, whatever his nationality or citizenship is and where ever the person is residing, whether inside or outside the territory of Singapore. In principle, section 4 of the Computer Misuse and Cybersecurity Act could be charged against a person who used the Internet to commercially distribute pirated music, film or software as these are offences involving “property, fraud or dishonesty” within the meaning of subsection (2) and which are punishable under the Copyright Act. Although the statutes been modified so that copyright protection can be enforced outside, yet several issues relating to jurisdiction are still required to be settled. The issues that arises are whether jurisdiction should be determined with reference to where the material 129
241 F.Supp.2d 589 (E.D. Va., 2003).
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originated, or where it went along the way or where it ended up being displayed, stored or printed. Moreover, even in cases where the infringement can be traced, it becomes very difficult to hold a person liable for infringement because of lack of cross border laws or because it is not financially viable. As a result, the infringer gets off and this is one of the reasons why such offences are constantly on the rise. In order to harmonize at least some of these issues, and create greater predictability and reliability in the field of intellectual property, the Member States of the Hague Conference on Private International Law adopted on 30 June 2005, a new treaty, the Hague Convention on Choice of Court Agreements. However, the Convention has not yet entered into force. The Convention aims to ensure three basic rules, each of those subject to certain exceptions: (i) the chosen court must in principle hear the case, essentially excluding judicial discretion under the forum non convenient doctrine; (ii) any court that is not chosen must decline to hear the case; and (iii) judgment rendered by the designated court (in any Contracting State) must be recognized and enforced without a review of the merits of the case. Disputes involving intellectual property are subject to specific rules under the Convention: Article 2(2) (n) and (o) of the Convention, to be read in conjunction with Article 2(3) of the Convention, excludes certain validity and infringement proceedings from the Convention’s scope of application; moreover, recognition and enforcement of judgments based on certain validity determinations are addressed in Article 10(3) of the Convention. Apart from jurisdictional challenges, there is also technical challenges. The technological challenges hinders law enforcement’s ability to find and prosecute criminals. Moreover, law enforcement agencies face legal challenges as the laws and legal tools needed to investigate such copyright violations are lagging behind technological complexities.
5.7 Fair Use and the provision of Safe Harbour The basic principle of copyright like other intellection property rights is the balance of the interests of the individual creator and that of the society at large.130 Fair use provision is common to almost every nation. Any use for the purpose of research and education, criticism and review, reporting current events and reproduction of a work for judicial proceeding, making copies of computer programme by lawful possessor of a copy for back-up or in order
130
See Article 27 of Universal Declaration of Human Rights for understanding the philosophy behind balancing.
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to utilise it for the purpose it was served, have always been flagged as fair use. This provisions are present in Section 51 under Indian Copyright Act, 1957. Similarly, transient or incidental copies if made during the course of communication is also attributed as fair use. For example, under the latest Copyright Amendment Act, 2012 under Sections 52(1)(b) and 52(1)(c), a person is not liable for copyright infringement of where there is transient or incidental storage of a work or performance which is purely technical in nature and also when such work is not expressly prohibited by the right holder or the person has no reasonable ground to believe that there is copyright infringement in the instant case. The proviso to 52(1) (c) states that when a person gets a written notice from the holder of rights that there has been infringement, he shall refrain from facilitating access for 21 days and within this period, the owner is required to obtain a judicial order, failing which the person may continue to provide access of such material. Further, it does not provide time period within which the ISP has to act. The above fair use provision has been provided by Singapore Copyright law under Part III, Division 3 and United States Copyright Act under Section 106 and Section 107. Though not specifically mentioned, it appears that the safe harbour concept has been incorporated in these provisions of law. On February 7th 2011, the Department of Information Technology, MCIT published draft rules on its website The Information Technology (Due diligence to observed by intermediaries guidelines) Rules, 2011 in exercise of the powers conferred by Section 87 (2) (zg), read with Section 79(2) of the Information Technology Act, 2000. The Gazette Notification numbered G.S.R. 314(E), dated 11-04-2011, formulated the Information Technology (Intermediaries Guidelines) Rules, 2011 of India. These rules provide the rights and responsibilities of intermediaries in India. Accordingly, the intermediaries should follow these rules and exercise proper cyber due diligence, in order to be entitled for a safe harbour protection. These Rules provide a due diligence framework to be observed by intermediary while discharging his duties. Sub-rule (4) of Rule 3 provides that the intermediary upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2), shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule. For details of the Information Technology (Intermediaries Guidelines) Rules, 2011, please refer Appendix 3.
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The Digital Millennium Copyright Act (DMCA), 1988 provides a safe harbour provision for Internet Service Providers (ISPs) from infringement suits, provided the ISP’s lack requisite knowledge of infringing activity. Moreover, the online service providers to qualify for the safe harbour provision also requires under the same section that the OSP’s should disclose the identity of infringers on request, subscribe to a detailed code of practice relating to notice, ‘take-down’ and ‘put-back’, and the banning of identified repeat infringers from access. Section 512 provides limitation on liability of copyright infringement based on four categories: 1. Transitory communications 2. System caching 3. Storage of information on systems or networks at the direction of users 4. Information location tools. Each limitation bans monetary damages and restricts injunctive reliefs. 131 . Under Singapore Copyright Law, a network service provider is not liable if it takes any action in good faith in relation to the removal of an electronic copy of any material from his primary network; or the disabling of access to an electronic copy of any material on his primary network or another network, if such removal or disabling was done in reliance on any notice. Moreover, the network service provider after such removal or disabling, should to notify the person who made available the electronic copy of the material on the network; and if such removal or disabling done in reliance on any notice, it shall provide that person with a copy of that notice.132
5.8 Conclusion Hence copyright being a bundle of right, various rights of the owner such as right of reproduction and communication, etc., are infringed by digitalisation and internet. Enforcing of Copyright provision has been very difficult due to jurisdiction issues. The digitally networked environment is increasingly making multi-territorial communication of works of authorship, trade symbols, and other intellectual property a common phenomenon, and largescale piracy is becoming ever easier to accomplish. In this environment, the practical
131
Section 512 (j) of DMCA
132
Section 193DA of the Singapore Copyright Act
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importance of adjudicating multi-territorial claims in a single court should be readily apparent. Without a mechanism for consolidating global claims and recognizing foreign judgments, effective enforcement of IPRs, and by the same token, effective defences to those claims, may be illusory for all but the wealthiest litigants. Moreover, it is also important that the judges need to be educated in technological field to understand the complexities involved in online copyright cases so that they can understand the true nature of the case and apply precedents depending on case to case basis. Law enforcement agencies also need to be upgraded with adequate tools and knowledge in the technologies that has evolved so that they can play a great role in collecting proper evidence against the copyright infringers.
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CHAPTER 6 Conclusion, Recommendations and Suggestions
Summary:-
This chapter summarizes the view point of the researcher in the conclusion part, which the researcher believes is the cause of the prevailing piracy. In the conclusion, the author gives the reasons for the piracy in the core areas of copyrighted products. Lastly, the researcher takes the opportunity to provide
Abstract
valuable suggestion and recommendations, which the researcher believes, if implemented well, can atleast bring down the piracy to minimum, if not an end, which is impossible by itself.
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6.1 Conclusion The problem of piracy has been associated with copyright since copyright law came into existence. India, USA, Singapore and many counties have made major amendments to copyright laws to deal with the challenges posed by digital technologies. At present these countries have the most developed copyright laws, yet piracy continues with no promise of its end. The IP - Internet nexus can be looked at from three perspectives – the author, the user and the service provider. An author creates a piece of work and registers it under the existing IP laws to enjoy certain benefits, but the digital world hinders the complete enjoyment of these rights. Copyright owners perceive Internet as threat to their exclusive rights due to the following reasons: (i)
wide distribution is relatively simpler and quicker on the Internet;
(ii)
anyone can distribute it to a mass audience;
(iii)
the quality of copies is virtually indistinguishable from the original;
(iv)
distribution is almost costless; and
(v)
users can easily and cheaply obtain copyright material on the Internet. The Internet is boundary-less and to trace a person’s Internet service provider (ISP) or
any content that was accessed on the computer, many a times presents a bleak probability. The end user can be a teenager or a technologically challenged person who simply does not understand the implications of the use and may even think it is right. It can also be an adult who is well aware of the consequences of his wrong doings. In the background of the high probability of events happening without the knowledge of the user, should the legislature imperatively look into the intent and circumstances surrounding the same? The concept of ISPs that started off with the purpose of connecting internal networks and college campuses has today become the only source to access the Internet. The nature of work performed by these service providers vary from one another. One of the most common features is that they are all into peering, which is the interconnection of peering points or Internet exchange points through which data is transferred to different networks. The catch here is that such data transfer is not easily traceable. For instance, if a person creates a website and uploads copyrightable content
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that is punishable, the only way to trace that person is through the IP address and if he has managed to fake it, then the possibility of even the ISP coming to rescue is minimal. As the proverb says “Prevention is better than cure”; the same applies to copyright laws as well. To extend the meaning of proverb in Copyright Law, an instance can be cited. Suppose if a music file or a cinematographic film is not well protected at its launch, and the same is once put into distribution channel via Internet, it is very difficult to stop more distribution of it in future to come. Copies of it are made in seconds and distributed to every corners of the globe. It then becomes more expensive to enforce the right provided by the statue to the copyright owner. Hence, it is very essential to secure the contents well in advance and to guard unauthorised distribution by any means. Many copyright owner save the cost of protecting their contents beforehand and unnecessarily get into the trouble of protecting it after the harm is already done. The instance of adequate protection of digital contents by technological means are being enforced by the antivirus companies, where it is very difficult to use the antivirus beyond the limits granted by the licencing agreement to the users even if the unauthorised copies are held by the people. This has in turn forced the buyers to buy legal copies and stopped unauthorised distribution. As for law enforcement part, it has been seen that the law enforcement mechanism are lagging behind in the protection of copyright. The main reasons behind copyright piracy are poor enforcement and lack of awareness on copyright matters. This is mainly because of the two reasons. One is that the enforcement agencies do not really know whether a content is a pirated content or an original copy. As the digital contents needs experts to determine, there are a few or no one is available with such enhanced knowledge to find out the true source of the content. For example, if someone installs pirated copy of a game into a computer hardware and by applying a crack makes it a working copy, it is very difficult to determine by any common person whether it is a true copy or not unless he is an expert in the area. In the similar instance it becomes even harder for an expert to determine whether a game is a pirated copy or an original, if the same person installs a game with a serial number. Similar problems also applies to all types of computer softwares. Another reason for lack of enforcement mechanism in the area of copyright is that police or the law enforcement agencies are paid adequately by the local distributors of pirated copyright contents. This payment are either paid on weekly and monthly basis on a price agreed upon by both the parties. Sometimes merchants of pirated Page | 104
copyright contents have to pay daily if the contents are distributed at popular places. Sometimes law enforcement agencies catch hold of such distributors for realisation of handsome money and not for the reason of enforcing the Act. As a result, this type of crime has become common because of the fact that there are slim chances of having being caught and if someone is caught, there is always a hope of being escaped by indulging into corruption. Even the law enforcement agencies who has a duty towards combating piracy, are not adequately aware of various provisions of the law relating to copyright. Again there is shortage of adequate police personnel, who can fully spare time for copyright crimes alone. They are more concerned with traditional law and problems which are believed more heinous to society and copyright related crimes are given least priority. Another greater factor contributing to the raise of copyright piracy is that society does not really treat copyright piracy as crime like other kinds of theft as nothing is physically taken away. Unlike theft, copyright piracy involve theft of 'intangible goods' which go unnoticed or ignored in many situations. Copyright crimes are of white colour nature, since on the face, it does not have serious implication on the society unlike other crimes. Many a time, they are not perceived as a crime at all because the society itself is engrossed in it. As Blackstone once commented, “when a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases and any attempt to vary the disposition he has made of it appears to be an invasion of that right.”133 This aspect is neglected often by the society. This has resulted in great stumble on the way of effective control of the piracy phenomenon. These problems are often more visible in a developing countries, like India. Even small crimes like theft are very much condemned by the society, but where piracy is concerned, no one even thinks to take step against it. As a result, it causes huge loss to the investments made in course of development of those creative contents that are illegally being copied away. It is a pathetic situation that at present even society does not take a note of such wrongs and believes on a false notion that it is the ultimate way to possess highly priced goods at a cheaper price. Thus, from societal angle the copyright piracy is not always a serious crime. What the society falsely ignore is the fact that the harm is caused to it in front, which effects the greater number of people, having far reaching consequences, both social and economic. Instead, lending copies of copyrighted materials to others are considered as ‘help’. Many a times people try to save Carter Ruck and Skone James; Copyright: Modern Law and Practice; Hardcover, Faber & Faber Great Britain, 1965; P.40 133
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extra money by borrowing copyrighted softwares and games to fulfil their needs. Sharing of digital contents are very common among friends and family members. The awareness level among end-users is also very low. While buying a copyrighted product, majority of consumers do not look at copyright notification (e.g. ©). As long as price is low (as generally is the case with pirated products) users do not mind buying pirated products even knowingly. The pirates are also able to sell pirated digital contents, whether in digital form or in physical form, due to the low cost of production. They reap the benefits of the product which are already popular. Hence, they get an extra edge to save on expenditure as the contents they are selling was already being advertised by the copyright owner and has become popular. Again the pirates are able to sell their goods in any place where there are large influx of people, whether it be a road side stall shop or a market place, and as such do not have to pay for their infrastructure. Moreover, the income generated from pirated contents are hard earned black money for which they do not have any accountability towards state exchequer. The only payment that is paid by them are towards enforcement agencies to let them loose and keep running the business. These situation gives strong foundation for the pirates to afford to sell similar contents at lower prices. This leaves the right holder with only one option, i.e. to beat the pirates through good quality products. But with constant up-gradation in technology, it has become easy, simple and time effective to copy or store contents as it is. Therefore, in present scenario, there is hardly any difference between a pirated content and original content, both serves the same purpose in same manner and fashion. Besides the above factor, it is seen that piracy creeps in where there is a gap between demand and supply. As has been discussed in Chapter 4, lack of accessibility of contents has fuelled piracy to grow. Mostly, it is seen that the copyright owners are not able to meet the demands of people. As a result, shortage in supply and the despair needs of the people to have access to the contents served as opening gates for the pirate actors to come in. The distribution network with respect to audio, cinematographic films, computer software and games are still lagging behind. Particularly, in semi urban and rural areas this gap is more vigilant and attracts the attention of pirates to create their market. Often these places provide safe area of operability. Once these pirated market starts, it is very hard for the original products to find market, because people get to the habit of pirated products. Again pirates control the area where they operate and they wilfully does not allow flow of original contents. What they sell are believed to be original copies by rural peoples and a counted few have a knowledge about it.
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Content owners should recognise this and explore new ideas and system to deliver contents via the internet or through mobile devices to allow access to content anytime anywhere. Another reason for the huge demand for ongoing piracy can also be attributed to the high percentage of tax. People by nature like to evade tax. When high tax rate is imposed on digital goods, they always neglect to buy the product since in pirated digital contents one does not have to pay tax. In Media Piracy in Emerging Economies, the first independent international comparative study of media piracy with centre on Brazil, India, Russia, South Africa, Mexico and Bolivia, “high prices for media goods, low incomes, and cheap digital technologies” are the chief factors that lead to the global spread of media piracy, especially in emerging markets.134 Still in the 21st century, where digital goods are priced based on its use and utility, people do account the size of it. To explain it in a better way, suppose “A” software which is just 10Mb in size is priced $20 and “B” software of same use and utility which is 50Mb in size and is priced $20, people tend to buy “B” software because they believe that Software “B” might have something extra. Similarly, a highly renowned book when is priced ₹1000 for few hundred pages, people does not buy it because photocopying is more affordable than buying. But where books have thousands of pages and is priced ₹1000, they buy it. Making legal content available to consumers through a convenient platform and at a reasonable price can reduce demand for infringing alternatives. Again, it is seen that cinematographic film industry suffer huge loss due to piracy. These piracy normally happens due to inaccessibility of the contents. As discussed earlier in Chapter 4, lack of accessibility have been the key cause along with the pricing. Most of the newly made movies are available for downloading because screening movies are recorded with small cameras and pirated CDs are produced (TC Rip /TeleCine rip). As for real copies, it takes atleast a month to start distributing the contents. By the time it reaches the market, it has become old because people have already watched them by downloading or brought pirated copies of the movie. With the advent of digital technology the piracy of literary works is taking a new dimension.
Media Piracy in Emerging Economies". Social Science Research Council. 2011. Available at: http://www.ssrc.org/publications/view/C4A69B1C-8051-E011-9A1B-001CC477EC84/; Last accessed on 1st April, 2014. 134
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Although the Copyright Laws are decades of old legislation, still they are new to people, especially where such violation happens via Internet. In a country like India, where thousands of people still do not understand this new technology, it puts a question on how to enforce it for violations which are done by people ignorantly. Every people should know the laws which is true and ignorance of it is not an excuse. But, how a person could be held liable of violation of copyright, if he himself does not know that the technology which he is using is providing a means to commit a crime which he is not aware. To substantiate the point, suppose a website provides a link to download a song for free of cost, and a person downloads it, he was not aware that such downloading is prohibited and no where there is a disclaimer addressing an issue that the music file is protected by copyright and he downloads the song. The reason for the person downloading the song is that the song is not available for his region or that it is an old track which is not available in the market. Here the intention of the person was not to download the song freely nor did he want to cause a wrongful loss to the copyright owners. It is sheer mistake of fact thinking it to be an authorized website. Here in this case, whether the person had knowledge or not is very difficult to prove. In a situation like this, Law provides stringent action against the person who might not be an offender in the true sense. Thus, it is true that people should know the law, however, it is not correct to assume that all the person should know the websites or web links which are legal distributor and which are illegal distributor. Had it been a case that if any content is available freely is an illegal content, it would have been a generalised conclusion for all people that if any content is available freely, it is an illegal content. This is not the case which is a great hurdle. For legal protection to remain meaningful, right holders must be able to detect and stop the dissemination of unauthorised digital copies. And for e-commerce to develop to its full potential, workable systems of online licensing must evolve which inspire confidence in consumers. The answer to these challenges to a great extent will lie in the technology itself. As much as this seems farfetched, the practical usage of this might be a solution to the on-going piracy rage. What is to be noted is that licensing does not necessarily imply a ‘pay to use’ policy and is required to be interpreted more broadly. Moreover, the countries should evolve policies which allow user to get access to copyrighted contents under online licencing at an affordable price. Above all, the perspective of the society need to be changed for proper implementation of the copyright laws, because even in present scenario people does not value the person’s natural right associated with his product, who by his hard skill and labour developed an intellectual property. Page | 108
6.2 Suggestions and Recommendations In the words of Justice Kirby, ‘The genius of the common law derives from its capacity to adapt to principles of past decisions, by analogical reasoning, to the resolution of entirely new and unforeseen problems. When the new problem is as novel, complex and global as that presented by the Internet, a great sense of legal imagination may be required than is ordinarily called for’. There are diverse opinions voiced by a number of communities in the context of regulation on the Internet ranging from fair/personal use, ignorance of infringement, the extent of liability of ISPs and other trivial matters that are likely to be encountered in the near future keeping in mind the rapid developments in the field of technology. Having analysed laws at the international level and being aware of the present scenario of India, USA and Singapore the following are a few recommendations and suggestions have been put forth by the author. 1. Role to be played by ISPs The current situation will only change if the access providers themselves become more active in policing their clients. This would be the case if the ISPs are themselves more directly benefited from value or content added services. Many of the laws that exist in the countries mentioned impose responsibility on the ISPs to keep a tab on such infringements. It might seem impossible for the service provider to filter information but the only way out is to devise a system in which violation of specific standards laid down will be brought to the attention of the provider who will in turn take necessary action. Moreover, the ISP’s can play a role in educating the public. It could serve as an educating medium if they publish the Ten Commandments of Computer Ethics 135 on their respective home page and the pamphlets they distribute. The Ten Commandments are: 1. We shall not use a computer to harm other people. 2. We shall not interfere with other people’s computer and respect the right of privacy of information of other peoples. The Computer Ethics Institute, a leader in the field, has compried a guideline to help computer users in their ethical decisions. They have called this guideline “the Ten Commandments”. Available at http://www.computerethicsinstitute.org/images/TheTenCommandmentsofComputerEthics.pdf, last accessed on 17.04.2014 135
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3. We shall not snoop around in other people’s computer files. 4. We shall not use a computer to steal something. 5. We shall not use a computer to bear false witness. 6. We shall not copy or use proprietary software for which we have not paid. 7. We shall not use other people’s computer resources without authorisation or proper compensation. 8. We shall not appropriate other people’s intellectual output. 9. We shall think about social consequences of the program we are writing or the system we are designing. 10. We shall always use a computer in ways that ensure consideration and respect for fellow humans. 2. Effective IPR police enforcement units The police “should be encouraged to take more suo moto raids to deter physical piracy.” In order to better address counterfeited and piracy issues, police should be self-initiating investigations of copyright violations and conducting actions independently instead of waiting for rights holders to prepare and request for all actions. The enforcement agencies need to be more decentralised. The more decentralised system of enforcement agency it is, it is easier to catch hold of the parties involved in copyright infringement. Moreover, the police personnel or the enforcement agencies should be provided with more of the resources and technological education. Moreover, the police personnel should also be paid adequately, because this has been a common problem to all the crimes that corruption breaks all kinds of boundaries making law enforcement weaker than the law actually is. 3. Implementation of Deep Packet Inspection by the ISP’s or OPS’s. Banning a website has been failing, and will still fail. Each time a website is banned, it simply changes the name or the sub domain name and continues to do the harm they had been doing. Instead of it, it would be intelligible that all the ISP’s are given a strict direction to monitor the contents through deep packet system. Deep Packet Inspection intends to allow network operators to precisely identify the source and content of each data packet that passes through each layer of the OSI model of the network. It handles the internet traffic in real time by scanning and analyzing the data packets through internet. The result of this analysis can be Page | 110
used for various purposes. For example, the ISP’s should charge an advance for every connections they provide to their users. If any contents which are copyrighted are distributed unauthorisedly by uploading or downloading, or by any means, ISP’s can charge from the advance from the persons to whom they are providing connections. And if any person visits such websites, they can deduce the amount of money approximately. The money so deduced can then be appropriated to the owner of the contents after deducting a portion of it for the service rendered by such ISP’s. Hence in this way an unauthorised distribution can be made a legal distribution. 4. Imposition of Content Id’s in Social Websites and Mobile Messaging Systems The content id softwares136 identifies the content whether it is uploaded or downloaded and if any person visits such websites which provides such unauthorised distribution of copyrighted digital contents, they could block the contents, or take actions as directed by the right owner. Social networking sites should also be mandated to use content id software, so that copyrighted contents are not be violated by means of such social networking sites. Software applications such as whatsapp, line, bbm etc. are also used in distributing such pirated contents. In such case, the provider should be made to install content id software, so that it such files are uploaded, they can stop the distribution of the contents to other person. 5. Search Engines should be mandated to prevent generating results containing Infringed Materials As for the search engines, which provides search results, it should be necessitated that any search with the word “free X song download”, “x torrent download” “x movie download” etc. which are basically meta-tags to links to pirated host servers should be separated and provide a result which takes to the lawful sites. The search engines should not generate such results and all meta-tags which are used to get results of infringing materials should always be directed to lawful websites. Any search engines who does not comply should be liable for copyright infringement. The reason for this is that by generating links to host servers containing infringing materials, search engines induces also people to download copyrighted contents illegally. Content ID software creates an ID File for copyrighted audio and video material, and stores it in a database. When an audio or a video is uploaded, it is checked against the database, and flags the audio or video as a copyright violation if a match is found. When this occurs, the content owner has the choice of blocking the content or adding advertisements to the content to make monetary gains. 136
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Moreover, the owner of search engines has the ability and control over the directories of metatags which are basically key words. 6. Prevention of Camcording in Theatres To overcome this problem two things to be done. Firstly, the piracy of movies is to be controlled by making the videos that is screened as a non-recordable one. The Standard Frame rate (Frames per Second or FPS) of videos that is screened is 24frames/sec. Here the concept is that to vary the frame rate in such a way that no cameras can record it. The frame rate of video that is screened is changed with FPS converter software applications. It should lie in a range of values which is lesser or greater than the cameras recording frame rate. Due to this difference between the frame rate of screening video and cameras recording, the video becomes non recordable by the cameras. Continuous waves or black frames will disturb the recording. However, this is just a technological measure which the right holder can take to prevent significant amount of pirates. Secondly, the Copyright Laws should implement strict guidelines to theatres and make camcording a separate offence under the Act, fixing more amount of compensation to the right holders. One of the guidelines that can be issued to the movie theatres is to through check a person before entering the hall and provide facility for users to deposit all kinds of digital goods having capacity to record a video before entering a movie theatre. 7. Software Product Activation requirement for products. As a technological means, the software companies and game developer companies, should start a telephonic toll free registration service for products sold physically. The software or games which are sold physically should require registration by way of single activation key for a single product. Instead of providing serial number along with the game and software, the right holder selling such products should require that the applications require registration of software. Each such application when installed should generate an algorithm containing numbers based on computers mac id. The so called generated number should then be referred to the service providers, who based on the number received should again generate a key for the application which would be a unique key. When both the keys matches the algorithms the application should work. As a result, unauthorised sale of can be down to a minimum. While for products sold through internet, the same system should be mandated with an option of registering both by way of internet and telephone.
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8. Development of Computer Programme for Streaming Services. Most of the streaming services which are lawful provide streaming services to users through web browsers. Users can download and save a copy of the video or audio file format when the streaming continues using specialised sotwares developed for the purpose. These softwares are based on the idea called grabbers, which identifies audio, video, and other file formats extensions and allow user to save them. Lots of such softwares available on the internet, for example internet download manage, eagle download manager, etc. They help user to save file during the streaming process itself. Some of these softwares are available free of cost or at a very cheap price. Some of which provide life time licence to users along with upgradation and updating facilities. As a result, users uses this facilities to make copies and distribute copies to friends, families and the world at large. 9. Spreading news of raids and cases of verdict through newspapers and television channels. It is extremely important that people should come to know about the raids conducted by different authorities. Such raids and seizure should be made a national news rather than a local news which will serve as a deterrence to the people and also educate them on copyright laws. Many a times, it is has been seen that such news are not given very much importance like other criminal acts. Henceforth, it the right holder should atleast make an effort to publish the different raids undertaken in different parts of the country, the awards that had been given by courts and also the ill effects of such piracy on society at large. 10. Educating people of copyright piracy. The government should develop a course work where young minds as well as elder people should come to know the different laws of the country. They should be educated about the potential loss a country suffers due to piracy. The course work while dealing with copyright issues should relate to instance happening around the surroundings, along with special emphasis on how it effects employment and economy. It should be designed in a balanced response of the hardship a copyright owner and the people on the other end faces. This will help change the present perspective of society towards copyright violations. Moreover, the copyright owner can educate people by producing copyright relating awareness ads and run them during TV commercials.
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11. Creating Hotline for reporting copyright piracy. The government or the copyright holders should come with a hotline for people to report copyright piracy. However, creating hotline alone will not suffice since very few will actually make use of the hotline to report copyright piracy. So as an incentive, some amount should be fixed for the informer who reports copyright piracy and should be paid only after such report is verified by police personnel, in case of government, and by other authorities so appointed by the copyright holders. However, it would be better if such hotline service is started by copyright owners because people have more faith in them. It should well be noted that such hotline service should take due care to protect the identity of the person who is informing about such copyright violation through hotline. 12. Creation of Copyright Vigilant Cell It is also required that a statutory copyright vigilant team should be created with joint support from the government and the copyright industry. This should have sub-centers located at every state of the country with authority to direct police officers at district levels to act on the information received from hotline or suo moto. The copyright vigilant cell should comprise of big leaders of copyright industry of all kinds, along with government officials, experts to inspect digital contents and enforcing agents. 13. Internationalisations of Jurisdiction for Enforcement In digital era, where internet is operating on different jurisdiction without boundary, an exception shall also be made in the jurisdiction clause on enforcing of copyright laws against persons, whether legal or natural, who have committed copyright violation, and should be bound by the law of the country where the copyright holder originally resides. This is essential because, it has been seen on a number of occasion that the right holder had to be a sufferer. Since the cost of litigation is very high and the right holder had to travel to each and every place where his work is violated kills the very essence of protection granted by the copyright laws. Although allowing criminal sanction is a difficult task by a country on another sovereign country, it should be made a rule to implement the civil sanctions, i.e., accounts of profit, injunction, and monetary relief by way of damages or compensation. Each country should help the other country in gathering evidence, and the decree passed by the foreign Court of one country should be implemented in the other country as if the decree is passed by the same country. If the defendant choose to appeal against the decree, he should have a right to do so, Page | 114
provided that such appeal should be made to the country where the copyright holder resides; unless the copyright holder have a place of business in the country where the defendant resides. In all such case a time limit should be fixed within which a court should pronounce the judgment. Moreover, there should be provision where the defendant should have a right to plea before the court of his country to strike down the judgment from enforcement which has been passed by the foreign Court. The grounds for striking down an order passed by a foreign court are:a. where the decision was not pronounced by a Court of competent jurisdiction; b. where it has not been given on the merits of the case; c. where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of the country where the defendant resides; d. where the proceedings in which judgment was obtained are opposed to natural justice; and e. where it has been obtained by fraud; If the defendant fails to strike down the order passed by the foreign court, the court should execute the order against the defendant within a stipulated time frame. If the defendant succeeded to strike down the order passed by the foreign court, the plaintiff’s, i.e., the copyright holder should have a right to appeal. The latter should appeal against the former before the immediate highest Court of Appeal where the later resides to which the appeals from this Court is normally appealed against. If the court to which the appeal is made by the copyright owner, i.e., the plaintiff, finds the judgment passed by its immediate sub-ordinate court is incorrect, it can award the execution of the foreign judgment, and if the court finds that the judgment is correct, it can deny the execution of the foreign judgment. No further appeal should lie from this court of appeal. In cases of ex-parte injunction, the foreign courts should immediately implement the order passed by the court of the plaintiff on receipt of a security deposit. The reason being that if the plaintiff fails to prove his point, then the defendant could be reimbursed for the loss suffered by him. When such deposit is made by the plaintiff, the foreign court should immediately pass the injunction in favour of the plaintiff, along with the power to seize all Page | 115
infringing goods found at the premise of the defendant. Where a permanent or mandatory injunctions are passed by the court of the plaintiff and the foreign court has also passed the order in favour of the plaintiff, and the defendant again does an act which violates his copyright, then on present of proof of such earlier orders, the foreign court should apply criminal sanction against the defendant according to the laws of the country where the defendant resides. It should be noted that if the defendant visits the foreign country where he has been booked for copyright violations, he should not be caught or locked up in prison. He should be accorded protection in terms of providing legal aid and scope for his attorneys to represent him in the civil action if he seeks such help from the government. In no circumstance, criminal sanction should be used against the defendant, unless the defendant has caused any other crimes during the period of stay in that foreign country. If this provision is implemented in all copyright laws, it would be easy for the copyright holders to enforce copyright protection against the infringers and settle the loss they have to suffer due to such copyright violations. The reasoning behind this is that this change will result in internationalisation of individual copyright norms without the need to impose severe legal sanctions nor to articulate new conventions. This will in turn ensure higher efficiency than present national copyright laws can provide. There will be issues in enforcement, however that also can be set aside if the courts of law choose to rule in a certain pattern that enables precedence and sets a standard that can be followed. 14. Educating the Judges on Technological Aspects It is also very important for the judges to understand the technological aspect that are currently involved in online copyright case. Most of the time, the judges tend to delay the cases involving technological details because of the mere fact that they do not understand the cases as they can understand other cases. Hence, they lose the interest in dealing with those technological part and in order to stay away from such technological hassles, they often delay the case thinking that other judge who would replace him would deal with the case. As a result it creates unwarranted delay in pronouncement of decree by the court. Therefore, it is necessary that judges should atleast be educated to those technical aspects which can give them a better understanding of a case presented before them.
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Appendix 1
Questionnaire Please tick the correct option, where ever applicable.
1. Name:• Note that the name will not be revealed to any person, and is collected exclusively for educational research. 2. Age:3. Sex:4. Whether: Student/Employed/Unemployed 5. Family Income: o Less than 50,000 p.a o Between 50, 001 – 1, 50, 000 p.a o Between 1,50,001 – 2,50,000 p.a o Between 2,50,001 – 3,50,000 p.a o Between 3,50,001 – 5,00,000 p.a o Between 5,00,001 – 7,00,000 p.a o Between 7,00,0001- 10,00,000 p.a o Between 10,00,001 – 15,00,000 p.a o Above 15,00,001 6. Which are the most interested areas of works being downloaded/copied and or brought from local pirated market store by you?
Music – Yes / No
If downloaded, please mention your favourite website from where you download. ____________ Favourite Music Category: Western / Indian /Mix
Movies – Yes / No
If downloaded, please mention your favourite website from where you download. ____________ Favourite Movie Category: Bollywood/Hollywood/ Korean/Others Favourite Movie Genre: Action/Science Friction/Thriller/Horror/Comedy/Others Page | 117
Computer Games – Yes / No
If downloaded, please mention your favourite website from where you download. ____________ Favourite Games Genre: Action and Adventure/Sports/Puzzle/Racing/Strategy/Others
Computer Software – Yes / No
If downloaded, please mention your favourite website from where you download. ____________ Favourite Software Categories: Operating Software, Please Specify Applications, Please Specify
Images – Yes / No
If downloaded, please mention your favourite website from where you download. ____________
Books and Journal – Yes / No
If downloaded, please mention your favourite website from where you download. ____________ Favourite Books Category: Educational/Sci-Friction/Nobels/Others 7. How many times a month you tend to download contents from the internet freely? o
Very Often / Regularly
o
Quite Sometime / Twice or thrice a month
o
Sometime / Once a month
o
Very Rarely / Depends on what you want
o
Never
8. How many times a month you buy a work from local pirated market stores? o Very Often / Regularly o Quite Sometime / Twice or thrice a month o Sometime / Once a month o Very Rarely / Depends on what you want o Never
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9. How many times a month you share your contents with friends and family? o
Very Often / Regularly
o
Quite Sometime / Twice or thrice a month
o
Sometime / Once a month
o
Very Rarely / Depends on what you want
o
Never
10. Do you know that downloading, buying or copying a copyright work is an illegal act? - Yes / No 11. Do you know that there is a piece of Legislation named “Copyright Act, 1957” for protection of Copyright in a work? – Yes / No 12. What is/are the reason for buying/downloading a pirated work or copying a work instead of original work? Please state your reasons, if any?
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Appendix 2 Name
Person1 Perso21 Person3 Person4 Person5 Person6 Person7 Person8 Person9 Person10 Person11 Person12 Person13 Person14 Person15 Person16 Person17 Person18 Person19 Person20 Person21 Person22 Person23 Person24 Person25 Person26 Person27 Person28 Person29 Person30 Person31 Person32 Person33 Person34 Person35 Person36 Person37 Person38 Person39 Person40 Person41 Person42 Person43 Person44 Person45 Person46 Person47
List of People and their remarks
Age
Sex
Profession
Family Income
Music Downloaded/ Copied /Brought from L.P.M
Movies Downloaded/ Copied /Brought from L.P.M
17 16 15 16 12 14 12 14 15 17 13 14 16 17 15 17 14 14 13 12 18 24 25 23 24 25 21 22 20 19 20 21 24 23 19 23 18 20 24 18 25 26 26 27 25 27 25
Male Male Male Female Male Female Male Male Female Male Male Male Male Female Female Female Male Female Female Male Male Female Male Female Male Female Female Female Male Female Female Male Male Male Male Male Female Female Female Male Female Male Female Male Male Female Male
Student Student Student Student Student Student Student Student Student Student Student Student Student Student Student Others Others Others Others Others Student Employed Employed Student Employed Employed Student Student Student Others Student Student Others Student Student Student Student Others Others Student Student Student Student Student Student Student Student
>15L
