Copyright issues in Cyberspace

Copyright Issues in Cyberspace

Copyright Issues in Cyberspace

Introduction

Information Technology is a medium to reach out to the people in the easiest and fastest way. It provides medium to display products of the company, providing content for the people and creating a platform for various creative, musical, or software programs. Cyberspace is like a living organism where constant uploading and downloading of information takes place.

The digital age has multiple advantages such as the information or data that can be transmitted through digitalized format and also sounds and music can be transmitted through wireless channels rather than fixed tangible lines. Works of art need not be resident on canvas for display in distant museums but can be stored in undifferentiated electronic impulses and, with a few keystrokes, made instantaneously available. In short, the contents can indeed be detached from the physical medium but the threat of duplicating it is also a continuous threat to the protection of intellectual property rights including copyrights on the internet.

Morally, a person should have natural rights over the products of his brain. Also, society is obliged to grant economic rewards to the products of the author. The technology has created a space for the authors but they are sometimes not given the credit of their work. Thus, it is important to set up a legal mechanism to protect infringement of original work.

Copyrightable works in International Sphere

As per Article 2 of Berne convention[1] defines “literary and artistic works” to include every work in the literary, scientific and artistic domain “whatever may be the mode or form of its expression”. Such works include the following:

“…books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature;…works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.”

In the United States, copyrighted works are protected to “works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

Thus US courts in Mai Systems Corp v Peak Computers Inc., held by the court of Appeals for the Ninth Circuit reasoned that although the “copy” in the RAM is transitory in that it will cease to exist when the machine is turned off or the program is otherwise deleted from memory, the time during which the program is present or being used is sufficient to meet the requirement of fixation in a tangible medium.

One of the most cited lawsuits worldwide for digital copyright infringements is of the Napster Case[2], whereby the plaintiff was sued by the defendants, for P2P file sharing. In this case, Napster provided software, whereby the user can share media files (MP3 Files) stored in his computer to other user of Napster. Since the filing of the Napster Inc case, the music companies have been seeking USD 1, 00,000 for each copyright-protected song downloaded using Napster. There was a settlement between the parties, whereby Napster had to give a third of all future profits to the settling parties, and Napster Inc. was shut down in 2000.

Publication of work in the United States has been understood to be in tangible copies of the work to the public and, correspondingly, the acquisition by the public of a possessory interest in the tangible copies of the work. So, for distribution of copies or acquisition of interest is to be by “sale or other transfer of ownership, or by rental, lease, or lending.”

The Internet poses two basic challenges for an IPR administrator i.e What to administer and how to administer?[3] Thus the challenges faced by copyrighted works are to be taken care of with due care and diligence taking into consideration various situations, it is yet unclear how copyright law governs or will govern materials as they appear on the Internet.

The various issues of copyright material on Internet are:

1. Ease of replication: Copyright works are a product of one’s brain and through the internet is easy to replicate the work and also to the best of the quality. Copyright law in today’s world is more about protecting the author from being replicated than rewarding him for his efforts.

In the existing copyright regime, there is a general perception that making copies of personal or private use is considered fair use and lawful. While the technology of reprography has improved dramatically, in the digital domain, "perfect" multiple copies can be generated by the same technology which is employed for the use of the digital product. Thus creating a chain of replication of the work it is difficult to actually find the person responsible for copyright works. They can create unlimited copies of the work, virtually instantaneously without any degradation of work. The result could be the disruption of traditional markets for the sale of copies of computer programs, music, art, books, and movies.

2. Ease of transmission: Digital form of transmission of work has led to different dimensions of copyrighted work. Traditionally copyright works required physical hard copies, tapes, or other devices to transmit the work of the author but in recent times it can easily be transferred or transmitted through wireless channels-computer bits and bytes-which is different to administer or prevent from the transmission of data or material. It can be transferred to multiple users as compared to the physical transmission of material. A pirated version of a digital work can be loaded into the computer and made available on the internet and transmitted across the globe in a fraction of second.

3. Linking[4]: Every website uses these features called links which is beneficial to them for advertisements and spreading their information to more number of people. What is linking? A link is simply a connection between the content of two different files or between different parts of a single file. A link may lead either to another file in the same Web site, or to a file on a different computer located elsewhere on the Internet. Internet browsers automatically decipher the instructions given by links and retrieve the specified file.

Linking is of two types:

·        Surface linking: When the home page of a site is linked, it is the case of surface linking.

·        Deep linking: When a link bypasses the home page and goes straight to an internal page within the linked site, it is the case of deep linking.

The problem arises only with regard to the practice of deep linking. The home page of a Web site is used as the entry point to the information contained within the Web site and welcomes users, explains the nature of the site and offers links that allow the user to navigate through the site. Deep links defeat a Web site's intended method of navigation. Further deep links may "steal" traffic from the linked site's homepage thereby decreasing the revenue that could be generated from advertising that is dependant on the traffic onto the site. A link is just a URL, the Internet address of a Web site, and therefore, like a street address is not copyrightable. But this technology of hyperlinking may aid in the distribution of creative material that belongs to someone else.

The courts in various cases have held that deep linking is an infringement of copyright material such as In Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.[5]*, the plaintiff, Intellectual Reserve, held a copyright in the Church Handbook of Instructions. After being directed by the court to remove the Handbook from its Web site, defendants posted a message on its Web site that informed users that the Handbook was online. The message went on to provide users with the URLs of three Web sites at which the Handbook was posted. The plaintiff sought a preliminary injunction enjoining defendants from continuing to post such messages to their site which, the plaintiff claimed, constituted contributory infringement of its copyright in the Handbook. The court issued the requested injunctive relief and further held that by posting a message on their Web site providing users with the location of infringing materials and apparently aiding a user in viewing the infringing Web sites, the defendants had committed the contributory infringement.

Derivative works: In the case of the computer, the situation of derivative work is very different, for it includes software like patches or updates, which may be made by independent programmers or by programmers retained by the company that publishes the software. There have been cases, when a programmer has taken two or more programs and combined them to produce his work. The question is whether there is any copyright infringement in such a case. In Midway Mfg.Co v. Artic Int’[6], the court ruled that it amounted to an unauthorized adaptation of the plaintiff’s copyright. On the other hand, in Lewis Galoob Toys Inc v.Nintendo of America[7], the court held that the usages of such software did not amount to a violation of the defendant copyright or create any unauthorized derivative works because there was no creation of new work.

Indian Context on Copyright Issues

The Information Technology Act 2000 fails to cover various issues such as copyright, domain name, cyberspace, and jurisdiction. Copyright protects the form of a selection of information and not the information itself. Unfortunately, it does not have any provision to check the piracy of software on the Internet.

As per Section 2(o) of the Copyright Act 1957[8] copyright exists in the source code of a computer program. Computer software is protected as literary work and so are computer databases. According to Section 14 of the Copyright Act, 1957 an author of a work has the sole and exclusive right to enjoy and exploit several rights conferred by the Act for literary, dramatic, musical or artistic work, cinematographic film and sound recording.

Thus when there is an infringement of copyright, the owner of the copyright is entitled to sue for remedies, damages, a profit of accounts, and delivery up of infringing goods. However, there is no specific legislation to protect the personal data of a person though to a little extent protection may be given under the Copyright Act, 1957.

As per Section13 and 63 of the Indian Copyright Act, 1957 literary works, pictures, sound recordings, and other creative works are protected from being copied without the permission of the copyright holder. It is yet unclear how copyright law governs or will govern these materials as they appear on the Internet.[9]

The Copyright Act, 1957 does not deal with the liability of ISPs at all. However, the liability of ISPs finds mention in Section 79 of the Information Technology Act, 2000 as follows:

‘Network service providers not to be liable in certain cases. For the removal of doubts, it is hereby declared that no person providing any service as network service provider shall be liable under this Act, rules or regulations made there under for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention ‘

Section 79 of the IT Act[10] exempts ISPs from liability for third party information or data made available by him if the ISP had no knowledge of the offense committed or if the ISP had exercised ‘all due diligence’ to prevent any infringement. This is sometimes misused by criminals for their gains. The Information Technology Act fails to provide a strict copyright infringement laws on creating a liability on the person who has misused the copyrighted material of the person for his own gain without acknowledging the hard work of the author.

Suggestions:

The Indian Copyright Act and Information Technology Act 2000 must harmonize with the international treaties, such as WIPO internet treaties which provide for online licensing to prevent online piracy and data infringement. Also with regard to jurisdiction, Indian laws should remove ambiguity in the context of its jurisdiction issues. The liability of internet service providers should be checked and also in relation and strict action must be taken for infringement of copyright owners. There must be a balance in relation to fair use and copyright infringement and proper acknowledging of the author is required.

Conclusion:

There are various issues relating to copyright infringement and the internet. The Government in recent years is trying to take appropriate measures to keep menace under control. The judiciary is trying to frame guidelines to protect the owners of copyright in numerous precedents. There are numerous examples of an infringement of copyright material on the Internet. A regulatory mechanism is required to set up for the implementation of these guidelines. Hard work and labor of the owner should be given due to recognizing even if done under “fair use” exception. Thus to protect the rights of the publisher of the article/material there must be adequate legal remedies from infringement of copyrighted material. The use of copyright material by any person should provide adequate compensation to the owner. The issues relating to replication, transmission, and deep linking should be dealt with and copyright owners should feel secured from piracy usage and it should be mentioned on the website about the copyright works uploaded on it. There should be a differentiation between noncopyright works and copyright works on the website. The key is to balance, which has always to be interpreted and reinterpreted considering varying interests from time to time along with the advancement of technology.

[1] The Berne Convention for the Protection of Literary and Artistic Works (1886), and the Paris Act of the Berne Convention (1971), available at: https://www.wipo.int/ eng/general/copyrght/bern.htm.

[2] A&M Records; Inc. v. Napster; Inc. 2000 WL 573136, I (N.D. cal 2000)

[3] The copyright environment for the publisher in the digital world by Charles Clark , The Publisher in the Electronic World, International Publishers Copyright Council, IPCC, Turin, May 1994

[4] Managing Intellectual Property: The Strategic Imperative By Vinod V. Sople; Page 166

[5] Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290 (D. Utah, Dec. 6, 1999).

[6] Midway Mfg. Co. v. Artic International, Inc., 704 F.2d 1009 (7th Cir. 1983)

[7] Lewis Galoob Toys Inc v.Nintendo of America

[8] Article 10(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides copyright protection to computer programmes

[9] Saha.Subhasis& Keshari Sourav, Challenges to Copyright Work in Cyberspace, Journal of Intellectual Property Rights Vol. 13.Jan 2008. at p.35

[10] Section 79 of the Information Technology Act, 2000