- authored by Eeshan Pandey
Founding and Joint Managing Partner
After the recommendations of the 161st Rajya Sabha Parliamentary report, the Copyright Act was amended in the year 2012 in order to incorporate digital media framework keeping in view the international copyright regimes. As a matter of fact, Section 65A and 65B of the Indian Evidence Act were also added during the amendment of Copyright Act. It is imperative to state here that the aforementioned statutes of the Indian Evidence Act are an added layer of protection for the Copyright owners who can in addition to filing a suit for copyright infringement can also seek criminal action u/s 65A and 65B of the Evidence Act.
The ‘Anti-Circumvention’ approach as envisaged in the WIPO Performances and Phonogram Treaty 1996 was introduced in the Indian Legislative structure vide Section 65A. Whereas, Section 65B prohibits an unauthorized user to copy or reproduce any original content by way of altering any right management information. Furthermore, Section 65A stipulates the anti-circumvention provisions thus, giving rise to three major implications, namely;
1. Applicable to only purposeful infringement of copyright by an unauthorised individual
2. If the circumvention is not within the teeth of the law, then anti-circumvention will not apply
3. Circumvention is allowed if done through a third party after meeting all the expressly mentioned conditions
The Digital Rights Management (DRM) provisions in the USA and Europe are very extensive in nature and have been in force since the last two decades. It is a fairly visible fact that the Digital Right Management provision in the Indian legislative framework falls short in effectiveness and implementation as compared to Digital Millennium Copyright Act (DMCA) of the United Stated framework. These nations have readily adapted to the changes in age and time with the advent of technology and have taken progressive steps forward to safeguard the intellect of copyright owners.
As on date, if we were to keep aside the only aspect of ‘Internet or Digital Broadcasters’ envisaged under the Copyright (Amendment) Act, 2012, there is till date no mention of ‘technological measures’ and/or ‘digital media’ in place in the Indian legislative framework that protects original copyright works from any kind of infringement. Measures such as Access Control, Copy Control and Encryption do not find an express space in any of the laws. Furthermore, there is a stark lacuna in the copyright framework for digital media as the laws do not differentiate expressly between effective technological measures and non-effective technological measures. The Amendment of 2012 based on the recommendations of the 161st Rajya Sabha Parliamentary report solely focusses on the rights of Music owners and/or Authors in the digital broadcasting space, leaving the social outreach of digital media out of consideration for the protection of original owners of content.
PROPOSED FRAMEWORK FOR COPYRIGHT PROTECTION OF DIGITAL ASSETS
Taking inspiration from the international regimes, it is only logical that the Indian Copyright regime also incorporates Digital Rights Management (DRM) technologies also commonly referred to as the Electronic Rights Management Systems globally. Such programs have proven to ensure copyright through distinguishing and guarding content, regulating access to original works, protecting and safeguarding the integrity of work and further putting into place regulations for monetizing on the usage of original content.
Furthermore, Access Control and Copy Control mechanisms can enable an original copyright owner to keep a regular check over the illegal exploitation of work, a model that has been successfully implemented by the USA vide the Digital Millennium Copyright Act. Access controls are a type software that are particularly designed to prevent any unauthorised user from accessing the first original copy of work unless they have a statutory or compulsory license to do so. Whereas, Copy Control is a type of software that prevents any unauthorised user to reproduce and/or make copies of any original work.
Encryption schemes are another way to tackle the menace of copyright violation. These schemes allow original content owners and creators to determine the authorised users in the digital market thus denying specific access to all the residual unauthorised users. In such a framework, only authorised users have access and keys to decrypt the original content/works. Digital Watermarks enable original content owners to incorporate special features into their works that are not visible as such but can be identified by the use of a detection device.
Another way to protect Digital Rights Management system is to enter into contractual obligations with the owner of copyright content either at the time a user acquires some Digital Rights Management backed software device so as to enable access to certain copyrighted original content with that DRM software. Such Agreements, popularly known as Click-Wrap Agreements, include all the terms and conditions enabling such user to download the original copyright content specifically to the DRM backed devices. Furthermore, such Agreements also make sure that the downloaded content cannot be reproduced, copied, pasted, or printed by expressly mentioning the same under the terms. Additionally, the users can also be contractually obligated to not monetize on the original content available on such DRM enabled software thus creating a protective bubble for the copyright owners.
In the case of UTV Software Communication Limited v. 1337X.To and Ors., the Delhi High Court observed that there is no difference between digital copyright infringement and infringement of copyright in the physical world as there is no logical way of differentiating the crimes committed virtually from the crimes committed in the physical world. It was further observed that the Copyright Act did not provide much contrast explicitly between the two spaces, traditional and digital.
In another case Disney Enterprise inc. and Ors. V. Kim cartoon and Ors. the Delhi High Court barred defendants from copying, distributing, streaming, or hosting any cinematographic work or show through the use of the Internet thus protecting the plaintiff and copyright owner from being victims of copyright infringement.
The Indian courts have also adopted a fairly new yet effective measure for regulating electronic and digital media piracy and infringement. This concept has been readily referred to as the John Doe order. That when an owner of an original copyrighted content or work including but not limited to a creator, writer, or any other person who produces a copyrightable intellectual property anticipates that their work is being illegally infringed by an unauthorised user, then such user can file for a temporary injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908.
It is a matter of fact that permanent download of music amounts to evident commercial sale of music online. The issue of End-User License Agreement and also the download function offered by internet-based platforms was also discussed in the 161st Parliamentary Committee Report and dealt in detail the Hon’ble Bombay High Court in Tips Industries Ltd. v. Wynk Ltd. It was observed by the Hon’ble court that selling or giving on commercial rental or offering for sale or commercial rental is an exclusive right granted to the owner of copyright in sound recording under Section 14 (ii) of the Act. After detailed deliberations, the bench concluded that offering songs for download over the internet would be covered under a different category of rights under the Act which falls beyond the scope of Statutory Licensing provisions under the Act.
In yet another celebrated war of the giants, the Indian music label Saregama sued Spotify India for evident infringement if its original copyrighted songs that Spotify was using without any explicit permission, agreement or any licenses before the Hon’ble Delhi High Court in the matter Saregama India Lts. V. Spotify India Pvt. Ltd. And ors. Accordingly, Spotify India agreed to remove all works and content belonging to the Music Label Saregama India from its platform.
Special mention ‘Nashville’: Spotify was sued by Eminem’s Publisher for an enormous copyright breach. In a suit filed in federal court in Nashville, the Publisher accused Spotify of deliberate copyright infringement for reproducing 250 songs of the rapper Eminem and thus making billions of dollars in return. The suit also targeted the Music Modernization Act, a federal law enacted in 2018 that was planned to make life easier for tech companies and for the songwriters to get paid. The suit showcased the interesting crossroads between artists, publishers, rights deals, and streaming, the suit has posed important questions about practices in the streaming world. However, it seems to have been a prolonged litigation battle as the suit is still pending before Hon’ble Federal Judge Jeffrey S. Frensely.