Copyright issues in cyberspace
From Advocatespedia, The Law Encyclopedia
We all come across several sorts of dilemmas in our life. Some could be existential or relating to our purpose in life or it could be about our morals. Such was Sophie’s Choice. In this movie, Meryl Streep features as a mother, Sophie, who in Nazi-Germany faces the ultimate dilemma when a German officer gives her a choice to either save her little son or her little daughter from deportation and subsequent death. Sophie is morally obliged to save both her children. Yet, she can save only one. This dilemma was more in context with what a third person would do in such a situation or what the society thinks is morally right to do and what Sophie, as a mother should do. In his book, “The Ethics of Cyberspace”, Cess J Hamelink reiterates that most people seem capable of a moral account of the choices they makewith regards to themselves, their peers or the collective they belong to. They can reflect on the perennial question: what is the right thing to do? In search of a satisfactory response, another question arises: Can ethics provide guidance in moral choice? Can ethical theory provide arguments that justify choice A versus choice B in specific situations? Without conducting a comprehensive analysis of all available approaches to moral choice, even a brief survey indicates that the conventional methods cannot satisfactorily resolve how people should come to justifiable decisions. In this article we will explore how realistic is it to expect that societies would conduct an ethical dialogue about technological choices? Internet reaches every nook and corner of the country. Development of national high-speed telecommunications backbone and provision of adequate telephone lines are priority issues. Nodes have been erected in over two-dozen cities in different parts of the country to facilitate internet services. While internet is poised for a quantum leap in this country, copyright faces its greatest ever challenge.
Copyright originated in the era of printing press. Not many people owned printing presses. When people chose to pirate books, there was a good profit, but the pirated books could be traced and were a good measure of infringement. The average person could not copy a book and give it out to friends or sell it on the street. But then came the advent of wonderful new technologies in the twentieth century. Photocopiers, Tape decks and VCRs, all these advances have changed the relationship between copyright owner and potential copier. While originally access to technology served as a barrier to copying by the public, with new technologies, the average person was photocopying, taping albums and recording television shows. And what does one know? Copyright is still alive and kicking and the entertainment industry is as powerful as ever. Today almost every nation has a copyright law in place and is mostly standardized to some extent through international and regional agreements such as the Berne Convention and the European copyright directives. But when we look back, we realise that the Copyright law has a unique history. The earliest copyright case is traced back to Ireland, where there was a dispute over the ownership of the Irish manuscript Cathach. The Cathach is the oldest extant Irish manuscript of the Psalter. 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 Saint 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 gave the judgement “To every cow belongs her calf; therefore, to every book belongs its copy.” The real need of copyright law was felt only after the invention of printers and copiers. Prior to the invention of printers, writing could be created only once. It was highly laborious, and risk of errors was involved in the manual process of copying by a scribe. Interestingly even in such a situation, Europe had an elaborate system censorship and control over scribes. During the 15th and 16th Century, printing was invented and widely established in Europe. Copies of Bibles were the first to be printed. Government had allowed printing without any restrictions, but this led to dissemination of lot of governmental information. Subsequently, government started issuing licenses for printing.
The republic of Venice was the first to grant privilege to print books. It was for the history of its own named ‘Rerum venetarum ab urbe condita opus’ authored by Marcus Antonius Coccius Sabellicus. From 1492 onwards, Venice began to regularly grant privileges for books. In 1518, the first copyright privilege was granted in England. It was issued to Richard Pynson, King’s Printer, the successor to William Caxton. The privilege gave a monopoly for the term of two years. These copyright privileges were called as monopolies. Later in 1701, the parliaments of England and Scotland were united because of the Anglo-Scottish Union. The new parliament was able to change the laws in both countries and an important early piece of legislation was the Copyright Act of 1709, also known as the Statute of Anne, after Queen Anne. The act came into force in 1710 and was the first copyright statute.
United States did not follow the law of England. Till 1783, US did not have proper copyright legislations. It was in 1783, few writers raised voice against the government to enact copyright law as they believed that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius and to promote useful discoveries.” But then, the continental congress did not have any power to enact copyright laws. In 1787, proposals were submitted at the Philipedia convention to grant congress the powers to enact copyright law, and it was finally in1790, first federal Copyright Act was enacted. Thereafter, came the international agreements like the Paris convention and the Berne convention which are the standards for the copyright law enacted by every country including India.
In India, ancient record of the laws never indicated about the presence of any Copyright law before the English Copyright Act, 1842 in its history but lots of valuable works had been created from century to century in this country. Like Shakespeare, Wordsworth and Keats in the foreign literature India had also 'Ram Charit Manas', 'Shakuntale' 'Arthasastra' etc. the few of the worthy creations by Tulsi Das, Kalidas and Koutilya without giving any monopoly of rights over their creations. The protection of these creations was not available in the sense of copyright, only non-enforceable moral obligations were experienced in our ancient creations. India, like most developing countries, received modern Copyright Law as a gift from its colonial rules. Prior to the 1957 Act, the colonial India had the Copyright Act of 1847, the first Copyright Act for Indian and then the Act of 1914 which was heavily tilled towards the UK Copyright Act of 1911 and known as replica of the British Copyright Act of 1911, textually as well as principle wise, though with a few suitable modification. This new statute, the imperial copyright Act 1911, was the next in the historical pipe made applicable to the Indian polity as it existed during the Queen's regime. On this Copyright Act of 1911, the Supreme Court of India opined that : "it seems to us that the fundamental idea of violation of copyright or imitation is the violation of the Eighth Commandment 'thou shall not steal' which forms the moral basis of the protective province of the Copyright Act of 1911. It was a free law operating in an enslaved regime as the Indian Legislature had very limited power of amendment by way of modification or addition which was conferred by Section 27 of the Act". Again, Lal's commenting on the Imperial Copyright Act, 1911 was that: "Prior to Indian enactments on the subject the law in force was the Imperial Copyright Act, 1911 which, with slight modification, was made applicable to this country by the Indian Copyright Act (Act no. III of 1914). The Imperial Copyright Act, 1911 either operating as proprio vigore or as applied by the Indian Copyright Act, 1914, was 'a law in force in the territory of India immediately before the commencement of the Constitution', and, it, therefore continued to be in force as the law of the land by Article 372(1) of the Constitution." The Bombay High Court has observed that the applicability of the Copyright Act of 1911 depends upon the provisions of the Constitution ofIndia which makes this Act applicable even after the commencement of the Constitution. In this context, it is relevant to note that the copyright is a territorial concept though international repercussion, development and amendments of an Act in independent India, is a constitutional guarantee. This Act could hardly stand the test of time and was subsequently repealed by the Copyright Act, 1914. The preamble of this last pre-independent statute, on the species of civil law, also specifically indicated the application of British Copyright Act, 1911 in British India whereas, it is expedient to modify and act to the provisions of the Copyright Act, 1911.Undoubtedly, the preamble was the key to open the mind of the legislature ; the same was forced to apply a foreign law on a foreign land. This law continued to be the law of the land until 1957 , when the need was felt to enact our own statute on copyright not only because of the change in the constitutional status of India but also in the light of growing public consciousness about rights. The passive area of intellectual property law in India received a jolt by advancement in the technique of reprography, audio-visual technologies and the exponential growth of personal computers with capacities unheard of in the past. World opinions in defence of the human rights in terms of intellectual property laid the foundation of international conventions, municipal laws, commissions, codes and organisation, calculated to protect works of art, literature etc., and India responded to this universal need by enacting the Copyright Act, 1957.
Copyright is a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings. The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work.The scope and duration of protection provided under copyright law varies with the nature of the protected work.
In a 2016 copyright lawsuit, the Delhi High Court states that copyright is "not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors to benefit the public." Section 14 of the Copyright Act 1957 defines “copyright” as the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely: —
(a) in the case of a literary, dramatic or musical work, not being a computer programme, —
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme, —
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.
(c) in the case of an artistic work, —
(i) to reproduce the work in any material form including—
(A) the storing of it in any medium by electronic or other means; or
(B) depiction in three-dimensions of a two-dimensional work; or
(C) depiction in two-dimensions of a three-dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);
(d) in the case of a cinematograph film, —
(i) to make a copy of the film, including—
(A) a photograph of any image forming part thereof; or
(B) storing of it in any medium by electronic or other means;
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film;
(iii) to communicate the film to the public;
(e) in the case of a sound recording, —
(i) to make any other sound recording embodying it is including storing of it in any medium by electronic or other means;
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;
(iii) to communicate the sound recording to the public
1. Mattel Inc. & Ors v Jayant Agarwalla & Ors [2008 (153) DLT 548]
Plaintiffs, in this case, were leading manufacturers of toys, games and consumer items. One of the well-known products of the Plaintiffs was the board game advertised and by the name ‘SCRABBLE’.
The trademark ‘SCRABBLE’ has been used since the year 1948. The Plaintiffs asserted being owners of the trademark SCRABBLE in all nations except for the United States and Canada. The Plaintiffs gave a list of their licensees for different platforms. They also affirmed having publicized and promoted the game widely through the Internet and maintaining well-known websites including, http://www.scrabble.com and http://www.mattelscrabble.com. The Plaintiffs alleged that defendants launched an online adaptation of their board game under the name SCRABULOUS, as an application available through the famous networking website http://www.facebo ok.com. The online form was also promoted by the defendants’ site http://www.scrabulous.com, http://www.scrabulous.info, and http://www.scrabulous.org.
The question was whether Scrabble is capable of protection under copyright law. That was the core of the issue before the Court. The plaintiffs argued that the game was an ‘artistic work’ under copyright law and claimed that “… the defendants have infringed (the plaintiffs’) copyright in the game board and the rules. By use of red, pink, blue and light blue tiles and the use of a star pattern on the central square … the defendants have infringed (the plaintiffs’) copyright in the game board which is an artistic work.” Justice Bhat rejected this line of reasoning considering three variables; (a) the required standards of ‘originality’ were not met, (b) the ‘doctrine of merger’ applies, and (c) Section 15 (2) of the Copyright Act would apply.
The arrangement of colours, values on the board, the collocation of lines, value of each alphabetical tiles, etc have no characteristic importance, but for the rules. If these rules which are the only way for expressing the fundamental ideas are subject to copyright, the idea in the game would be given monopoly: an outcome not intended by the lawmakers, who just wanted an expression of ideas to be protected. Thus, this Court concludes, prima facie, that the copyright claim of the plaintiff cannot be granted.
Section 15 of the Copyright Act mandates that copyright subsists under the Copyright Act in any design, which is registered under the Designs Act, 1911 and in respect of designs capable of registration under the Designs Act, 1911, the copyright shall cease if an article to which the design has been applied has been reproduced more than 50 times by an industrial process by the owner of the copyright or his licensee. It cannot be questioned here that reproduction of the multi-coloured game board has happened more than 50 times, as also the alphabetical tiles. It is not also in dispute that there is no registration which has occurred under the Designs Act, 1911 (or under the Designs Act, 2000). In these conditions, the defendants’ objection that copyright cannot be claimed, is prima facie justified. Therefore, for this reason as well, it was held that the plaintiffs’ copyright claims cannot be granted, at this stage.
2. Eastern Book Company & Ors vs D.B. Modak & Anr [(2008) 1 SCC 1]
Eastern Book Company (EBC) is a leading publisher of law reports/journals in India. One such publication is a law report titled “Supreme Court Cases” (“SCC”), containing all Supreme Court judgments. Raw judgments are copy edited by a group of assistant staff and various inputs are put in the judgments and orders to make them user-friendly. These also include the addition of cross-references, standardization or formatting of the text, paragraph numbering, and verification and by putting other inputs. The Appellants additionally prepared the head notes involving two segments, the short note consisting of catch/lead words written in bold; and the long note, which is comprised of a brief discussion of the facts and the relevant extracts from the judgments and orders of the Court.
The Supreme Court held,
“For the reasons stated in the aforesaid discussion, the appeals are partly allowed. The High Court has already granted interim relief to the plaintiff-appellants by directing that though the respondent-defendants shall be entitled to sell their CD-ROMS with the text of the judgments of the Supreme Court along with their own headnotes, editorial notes, if any, they should not in any way copy the head notes of the plaintiff-appellants; and that the defendant-respondents shall also not copy the footnotes and editorial notes appearing in the journal of the plaintiff-appellants. It is further directed by us that the defendant-respondents shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor’s judgment regarding the opinions expressed by the Judges by using phrases like concurring’, ‘partly dissenting’, etc. based on reported judgments in SCC. The judgment of the High Court is modified to the extent that in addition to the interim relief already granted by the High Court, we have granted the above-mentioned additional relief to the appellants.”
ISSUES AND CHALLENGES
A question that modern-day authors and researchers ask themselves is: Why is copyright ill equipped to deal with the internet? This brings us to the major issues that internet poses to copyright and intellectual property rights.
• First being the determination of public and private use. Like all copyright laws, the Indian Copyright act also makes a distinction between reproduction of public and private use. Reproduction for public use can be done only with the right holder’s permission, whereas the law allows a fair dealing for private use, research, criticism or review. This distinction is eroded with the ability of an individual to transmit over the Internet any copyrightable work to do myriads of users simultaneously from the privacy of his/her home and users being able to download simultaneously from the privacy of his/her home and users being able to download simultaneously a perfect copy of the material transmitted, in their homes. Fading away of the thin line that divides the public and private territories, many feels, calls for a new set of norms in copyright.
• The internet has put on their heads some of the traditional concepts. A case in point is that of publishing. If printing press had given birth to publishing industry, the internet, empowering every writer to be his/her publishers has sounded a warning bell, if not the death knell of that industry. This raises the question, whether making a work available on the internet is publication or not. According to the Indian Copyright Act, a ‘publication’ for purpose of copyright means ‘making a work available to the public by issue of copies or communicating the work to the public’. This definition, by its non-restrictiveness, can be construed as electronic publishing and thereby, ‘publication’ on the internet. Whether communication over internet is communication to the public is still an unsettled issue.
• Like in most copyright laws, in the Indian law, the distribution rights also get exhausted with the first sale. As of now, a student can freely sell a second-hand textbook, or a library can circulate among its members’ books it purchased. In the internet, distribution gets entangled with reproduction since no copy can be distributed without reproduction. Temporary copying known as caching is an essential part of the transmission process through internet without which messages cannot travel through the networks and reach their destinations. Even when a user only wants to browse through, temporary copying takes place on the user’s computer. Coverage of the temporary reproductions was a hotly debated issue in the World Intellectual Property Organisation (WIPO) Diplomatic Conference of December 1996 and remained inconclusive.
• Perhaps the most significant issue from the angle of copyright enforcement is that of liability. For one there is the issue of liability for acts that take place in the transmission of a legal (distinct from an infringed) copy of work. As already mentioned, the issue depends a lot on the interpretation the judiciary takes of the rights given by the law. In case the judiciary takes the view that reproduction etc., that occurs in transit is gross violation of a copyright then question arises as to who is to be held liable? The moot point in this issue is whether the ISP can be held liable for the actions of his subscriber even though he is not aware of them. Section 79 of the Information Technology Act, 2000 states that if the subscriber 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 an offence or contravention then he won’t be upheld liable under the Act. But this leaves another issue at hand that if the ISP is held not liable within the ambit of the act then he may be held liable under the national law of any other country.
1. A landmark case is that of Banyan Tree Holdings Ltd v M Murali Krishna Reddy and Anr. in which the issue of extended jurisdiction was dealt with. The plaintiff here was a resident of Singapore and the defendant was from Hyderabad. The rationale of Casio India Ltd v Ashita Tele Systems Pvt. Ltd. was relied upon to conclude that due to the ubiquity, universality and utility of the features of the Internet and the Worldwide Web, any matter associated with it possesses global jurisdiction. The Court also relied on the holding in Zippo Manufacturing Co v Zippo Dot Com and some other US decisions and concluded that the Court did have the jurisdiction to deal with the matter.
2. In one case of Super Cassettes Ltd v Yahoo Inc and Anr the Delhi High Court had issued a notice to the ISP Yahoo Web Services (India) Pvt. Ltd for infringing copyright of the plaintiff by streaming one of its videos in the portal video.yahoo.com. The Delhi High Court has issued similar notice to other ISPs like Google, YouTube. Some amendments have also been brought about in the Act in Section 52(1) (c) for restricting liabilities. But there is still no express provision.
With the passage of the Copyright Amendment Act, 2012 the copyright regime in India strengthens statutory protection available to authors to safeguard their rights both in offline and online world. At the same time, it explains the fair dealing exceptions to copyright with much lucidity. New hybrid digital works such as multimedia will bring forth newer issues as technology develops and new laws or clarification of existing laws will be required to address new issues in protection of copyrights in the dynamic digital world.