LAW MANTRA     (Think Beyond Others)

Digital Age and Protection of Copyright

ABSTRACT

The major changes in copyright legislation have been in response to advances in technology. Since the development of internet, there have been major Amendments to the Copyright Act every two or three years. In effort to counter piracy, the media industry, including entertainment and Publishing is resorting to its own technological fixes such as Digital Rights Management, Technological Protection Measures and Broadcast Flags. While protecting the Copyright owners these measures conflict with the legitimate rights of Copyright users. This paper focuses on copyrights in digital era and its relevance. It also highlights the position of the same in US, UK and India. The paper conducts crucial examination on the frame work of intellectual property in the digital systems such as iPod, music, movie etc. This further suggests enhanced safeguards for the protection of copyrights in the digital era. The provisions from the Copyrights Act 1957 relating to digital system protection has also been clubbed in the paper. Apart from this the given topic also deals with the question “whether digitalization is an output of modernization?”” If freelancers were treated as employees, who owns copyright?’’.

“The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.”

We are very much possessive to our property. This has risen to such an extent where people from every nook and corner of the world come up with the thirst of enjoying legal protection for their property. This is how rules and acts related to tangible property came up. But Europeans (Italy, US, UK etc) were so fast that laws relating to intangible property came into existence during the reign of the Crown of the respective states. Intangible property was further shaped into intellectual property i.e. the property weaved from human intellect. Then intellectual property rights  and laws came into the social as well as the legal screen. Intellectual property rights are not available inside a single Act and hence ingrained in statutes such as The Patent Act 1977, The Copyrights Act 1957, The Trademarks Act, PPV&FR Act etc. The ancient tradition, culture and style was later revived through globalization and liberalization which further furnished modernization which was sprinkled on technology in such a way that the pages became so wet with innovations. The dynamic development in technology gifted movies, iPods, compact disk, I-phone walkman etc. which are crucially emanated from the application of human intellect. All these devices are enriched with artistic work that requires ultimate protection. For general knowledge on IPR patents meant for inventions, Trademarks for quality, Copyright for artistic works, Plant varieties and sui generis and many more.

The modern era in a converging angle can be called digital era as world is live through digital technology. At a dazzling glance we should know what a digital technology is. The digital technology is a technology that uses digits 0 and 1 to function the creator’s art. Digital technology is banded in artistic work and therefore essentially requires copyright protection. Thus copyright has come into picture. The definition of artistic work that requires copyright is ingrained in s.2 (c) of The Indian Copyrights Act 1957. The protection of Copyright in digital era is discussed in detail.

To plough the topic in the best way the works in which copyright exists must be known; is stated in s.13 of The Indian Copyright Act. The meaning of copyright is briefly described in s.14 of the said Act. The digital age is started in the second millennium and it means that every shop, company or institution have at least one computer. The digital age came into its healthy stage in a tremendous time which is ipso facto evident from the introduction of digital camera, digital computers, digital books etc. Digitalization is an outcome of computer revolution and has introduced copyrighted works, including text, music, and video, has dramatically increased the efficiency of unauthorized copying. Infringers can produce thousands of perfect copies of copyrighted works at little cost.

Copyright is said to be infringed if an owner of the artistic work lost protection to his creations. Digital rights management (DRM) is a class of access control technologies that are used by hardware manufacturers, publishers, copyright holders and individuals with the intent to limit the use of digital content and devices after sale. DRM is any technology that inhibits uses of digital content that are not desired or intended by the content provider. DRM technologies attempt to give control to the seller of digital content or devices after it has been given to a consumer. . Ripping, combined with the Internet and popular file sharing tools, has made unauthorized distribution of copies of copyrighted digital media (digital piracy) much easier.

DRM technologies enable content publishers to enforce their own access policies on content, like restrictions on copying or viewing.  Common DRM techniques include –   Restrictive Licensing Agreements & Scrambling of Expressive Material & Embedding of a tag.

Copyright owners have attempted to combat to the threats of infringement in numerous ways. They have sued the providers and users of online file sharing networks and developed technological barriers to unauthorized copying. They have also lobbied governments to strengthen legal protections. They have also encouraged police and prosecutors to use criminal copyright law more liberally. Infringement was generally considered a private, economic wrong enforced by copyright owners pursuing private law suits and remedied by injunctions, damages and other civil remedies. Digitalization increases the quality of copyrighted content and reduces the cost of delivering to consumers. Hence DRM has vital importance in the digital era. The emergence of digital technologies towards the concluding decades of the 20th century as defining paradigms of new age communication raised a whole new set of challenges to copyright regimes.

The prominent copyright issues in the digital era can be classified into three groups

GROUP 1: Issues relating to a whole new set of work namely computer programs, databases and multimedia works.

GROUP 2: Issues relating reproduction, distribution and communication to the public of a work through digital media.

GROUP 3: Issues relating to management and administration of copyright in the digital environment.

The Digital Technology under the copyright law includes new works, computer programs, databases; multimedia works etc initially raised many doubts about their coverage under copyright laws. The development of Digital Technologies has drastically affected the data bases. Multimedia works includes (as given in copyright act) phonogram, cinematographic film. Since there is rapid development management of copyright in digital environment is essentially required from all angles.  WCT plays a major role in managing the digital environment.  As per the copyright Act knowingly making or possessing any plate for the purpose of making infringing copies of copy righted work is a punishable offence.   During the period of copyright, certain special uses allowed without any specific permission from the copyright owners such as for private, academic, educational, judicial or legislative purposes.  Though many rights are provided, the government or judiciary should ensure fair use of those provisions.  In Burrow Giles  Case, the protection of copyright was extended to photography.  In White – Smith‘s Case , reproduction of sounds of musical instruments, playing music for which copyright is granted is not a violation of copyright.

The 19th century especially during 1990’s a concern new copyright protection for multimedia has been emerged. The WIPO Treaties or the PROTOCOL to the BERNE convention of 1996 becomes a blanket to protect Art from all piracy.  The report prepared by UNESCO and WIPO concluded that the use of protected work in a computer system implies the commission of an Act of reproduction in a media.  The signing of the PROTOCOL on December 2 – 20, 1996 implied among other provisions. The reintroduction of the content of GATT agreement regarding computer programs and databases and the copyright protection of digital or electronic disseminations through Art 4, 5 , 8 etc. On the other hand the WIPO performance and phonogram treaty adopted similar provision regarding performers and producers of phonograms.

As far as we have discussed almost all aspects of copyright protection in the digital era, now the right time has arrived to check the position of copyright protection in different developed as well as developing countries round the world in developing copyright law and its protection in the digital era. We are well equipped with the knowledge that the concept of intellectual property rights has emanated in the western countries such as US, UK, Australia, Canada, France, Italy etc. Therefore the disputes and corresponding cases will be more in western countries compared to others. India’s position in copyright protection in digital era has also been analyzed keenly in the following paragraphs.

1)      AUSTRALIA:  The growth of copyright laws has tremendously taken place in Australia during the late 19th century. The very antique case is Victoria Park racing case and deals with idea expression. In Cuisenaire’s case it was held that a literary work cannot be infringed by a three dimensional reproduction. Further in Yumbulul’s case it was held that copyright law doesn’t provide adequate protection of aboriginal community claims to regulate reproduction. In Telstra’s case it held that originality is required to attract copyright protection.

2)      CANADA: This country being a vital part of western union many cases has been filed in the name of copyright being an intellectual property right. In Muzak Corp case  the matter was ‘authorization as infringement’. DRG Inc.’s case dealt with the moral rights of author in copyright. BMG Canada Inc. case dealt with the privacy of file sharers.

3)      FRANCE: Here there is a historic case of Societe Le Chant du Monde’s  were it was held in favor of the plaintiff due to the very strong moral right regime in France.

4)      INDIA: Being a developing country and suffering from shortcomings of not being a western country the growth and contributions to intellectual property field has been started in the late 1990s and the landmark case of Pine Labs Pvt. Ltd  dealt with the absence of period of assignment.

5)      UNITED KINGDOM: Intellectual property has born lushly bushy in UK and with bona fide interest many people filed cases to enforce their rights on intellectual property which they had created with time and effort. A series of Case laws give light through the path of development. In the landmark case of Gyles v. Wilcox  in which it was unanimously held that a fair abridgement of a work is not copyright infringement. In the historic case of Millar v. Taylor it was held that copyright is a form of property .In Walter v. Lane reporter’s copyright is emphasized. In Jennings v. Stephens it held that performance in public as an infringement. In Express Newspapers v. News (UK) Ltd it confirmed the case Walter v. Lane.

6)      UNITED STATES:  The soil of United States of America is very lucky to be the back-bone of development of intellectual property rights. In Wheaton’s case, it was found that there is no such thing as common law copyright and one must observe the formalities to secure a copyright. In the celebrated case of Baker v. Selden, it was unanimously held about the idea expression divide. In the case of Macmillan Co. v. King, it deals with fair use with respect to an educational context and to summaries. In Mazer’s case, it was held that there is extended copyright to applied art. In Irving Berlin’s case the main issue was whether parody is a copyright infringement. In the landmark case of Dowling v. U.S. it was held that copyright infringement is not theft, conversion or fraud; illegally made copies are not stolen goods. In Lotus v. Borland  it was held that software interfaces per se are methods of operation and are not covered by copyright. In Perfect 10 v. Visa  it mainly dealt with secondary copyright infringement. In the recent case of Cambridge University Press v. Patton, it was held that University’s use of copyrighted material in e-reserves does not constitute direct or vicarious infringement.

Despite all these developments, we can easily find that there are numerous fraud and piracies growing in the digital world. The entire globe is affected by competition spirit. It is good to have competitions to boost the socio economic development but it has risen to a level where people turn to pirates to accomplish their target or to exploit their competitor’s work to make it under developed or inferior in the digital world. In such a situation people with skills fear to present their work in front of the world and considering this the legislations of different countries crafted advanced rules and laws to safeguard copyright of the owner’s artistic work and protection from infringement of rights. It is very clear that Digital Rights Management initiated by WIPO is a thorny fence restricting all freelancers from entering into the legitimate copyrights possessed by the owner. Though there are different treaties, agreements, laws, rules and regulations it is not sufficient ensuring and establishing copyright protection to each and every author. Therefore developing countries along with developed countries should take new methods and measures to adopt new strategies and agreements to safeguard the protection of copyright in the digital era.

Submitted by:- ANNU B.

                       B.B.A LL.B (HONS)

                       SEM 7TH

                       SCHOOL OF LEGAL STUDIES COCHIN UNIVERSOTY OF SCIENCE AND TECHNOLOGY (CUSAT)

 

 

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