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IPR And Enforcement Mechanism: Problem And Prospects

Written by: Aradhana Pandey, Ravi Mishra & Saumya Tripathi - Students of MSCLIS in Indian Institute Of Information Technology-Allahabad
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"Determine that things can and shall be done and then we shall find the way" - Abraham Lincoln

The objective of IPR is to give the greatest good to greatest number. In other words this approach states that these rights induce people to behave in the ways that increase socially valuable goods and services and distribute these goods and services in the fashion that maximizes the net profit that people reap from them. The distinctive characteristics of most intellectual products are that they are easily replicated eg.Copyright and this can be easily done when a person is working in digital environment. Digital environment is intrinsically different from print and mass media. The digital environment can be characterized as ephemeral and ethereal. In the words of Benkler,"

There are three attributes of information society:
1. Plasticity
2. Transmissibility
3. Processibility

The plasticity, transmissibility and processibility are unique to digital environment. These characteristics are the product of electric impulses of binary language of 0's and 1's.At best, they are symbols and therefore intangibles. These symbols are converted in human readable forms and also know no borders. Written and printed texts, sounds, speech and pictures can be reduced to 0's and 1's and once reduced they become signals and hence vulnerable to mutations by the use for multimedia, become capable of being combined, separated or manipulated in any or all forms of expressions in ways which were never thought of. However it is not the intangibility alone which is problematic because Common Law incorporates incorporeal rights. The problem is intangibility plus plasticibility, transmissibility and processibility which require law and legal institutions for remapping of the contours of digital environment.

The digital environment offers a wide range of possibilities to all stake holders. In particular, the technical development has moved the internet increasingly from a centralized structure where the users utilizes those contents offered by website to one where more powerful devices with cheaper connectivity and faster transmission speeds, offer consumers access to richer online contents. The advent of broadband promised ubiquitous access to all types of intellectual property in a manner previously not possible. This permits not only a greater dissemination of such Intellectual Property, but also stimulates consumer demands for the services that enabled access. The problem arises just after the contents take the digital form and are put on internet. There are some inherent weaknesses associated with the management of digital rights as the same being prone to violation by use of technology itself. There have been several efforts to overcome the problem and find a way for the efficient management and the protection of digital rights. It has rightly been recognized that digital rights neither be protected nor be enforced unless solution for the problem is sought in the technology itself.

As with the ever developing technological advancement the number of people using internet services is increasing so is the malpractices to negate the interests of IPR and to reproduce the contents available thereon. The most common act of violation is observed as piracy, which has not earlier been specifically defined in the Copyright Act 1957 or in any other legislation dealing in Intellectual Property Rights. Even IT Act, 2000 does not provide specific provision dealing with piracy.

This paper is an attempt to analyze the Intellectual Property violation with special reference to digital rights management. Copyright and its related rights are essential to human creativity, by giving creators incentives in the form of recognition and fair economic rewards. Under this system of rights, creators are assured that their works can be disseminated without fear of unauthorized copying or piracy. This in turn helps increased access to the work and further enhances enjoyment of culture, knowledge and entertainment all over the world. It is recognized worldwide that copyright piracy is a serious crime which not only adversely affects the creative potential of society by denying the creators their legitimate dues, but also causes economic losses to all those who had invested their money in bringing out copyrighted material in various forms for use by the end users.

With advancement in technology new techniques have been developed to control the internet piracy on copyrighted contents. Digital Rights Management is an impressive attempt amongst such techniques. DRM is primarily a process of insertion of particulars of the intellectual property into it. And, therefore it is an aid to curb the piracy practices. Digital Rights and Information Management is usually construed as protection of copyright and controlling internet piracy but our submission identifies DRM as a technology used to identify, describe, distribute and trading of contents and regulation and enforcement policies on digital media. Information stored on electronic form is cheaper, easy to store, retrieve and speedier to communicate. These advantages of Web have attracted many people and easy access to information on the website may result in conflict with their copyright interests.

Globalization has forced the copyright issues to forefront because large number of copyright products is traded internationally. But the challenge imposed by the development and growth of the internet to the existing copyright laws is immense.

There are several issues to be discussed:
1. What is copyrighted on contents available on Internet?
2. How should one decide where the copyright infringement has taken place?
3. Who should be held liable for copyright infringement and how?
4. How the balance is to be achieved in protecting the works of the author and the usage and awareness of works of such authors?
5. How does the DRM help in the copyright protection and enforcement?

I. Copyright on Internet

If we analyze the issue in context of India, it requires a brief discussion of provisions dealing in copyright and particularly in cyber piracy. Anything that can fall within ambit and scope of definition as provide in Section 13 of Copyright Act, 1957 is a subject matter of Copyright. Intricacies of contents available on the internet being intermingled in nature have composition of literary, artistic, dramatic, cinematograph, musical and sound recording. Seen from the laws of Copyright, the Information Technology Act 2000 does not lay down any concrete frame work for dealing with specific Copyright violations on the internet. The inability of the Act to address copyright issues in proper detailed manner has been criticized as one of its most glaring lacunas.

However there are provisions that can be construed to be seeking to address some aspects of copyrights as is obvious from Section 43 of the Act which relates to penalty for damage to computer, computer system, etc. Hence while generally, the issue of copyright violation comes under the purview of the Copyright Act, which will also cover copyright violations on the Internet. But looking at the provisions of the IT Act, it can be said that there has been some piecemeal effort made to deal with the possible copyright infringement on the Internet. The text of Section 43 the Act of provides as follows: "If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network,-

(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;.he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected."

Article 10 of the TRIPS agreement and Arts. 4 and 5 of WCT recognize that not only computer software is protected, but also content of web pages are protected under the treaty, if they are original. Thus, the unique underlying design of a webpage and its contents, including links, original texts, graphics, audio etc. and all other unique elements that make up original nature of material is copyrighted.

II. Copyright Infringement

The second issue requires consideration that internet has made it possible to replace traditional paper based communications by electronically based communications which does not know physical or geographical boundaries. The efficiency and speed brought by this technology has made it a good alternative. It is still in its evolutionary process and only future will tell us where it will lead us. The existing copyright laws are territorial in nature and the standards of protection embodied in international conventions leaves room for national legislative determinations and therefore acts, which may constitute infringement in one country but may not constitute infringement in another.

Thus the first important goal of international community should be to harmonize their respective Intellectual Property Laws. International community should seriously apply its resources to establish an international tribunal like Copyright Management Office or some dispute settlement body to decide matters of copyright infringement having international tinge. The next phase of it should be to take help of private international law. Now it can be said with clarity that internet has certainly fastened the entire process of globalization. If this jurisdiction issue is not settled and a liberal stand is not taken on issue like sovereignty, then this internet revolution as the "information gateway of the future as a misnomer of the times to come".

III. Liability for Copyright Infringement

The explosion of the internet as a vast decentralized non- geographical communication and commercial network has presented much unique e-governance, especially concerning regulation through law. It has become obvious that a crucial node of power for the purposes of law and governance is the Internet Service Provider (ISP). Uniquely placed in the decentralized interactive networks, ISPs influence conduct and enforce cultural norms or laws. The question, then is, whether to enact a whole new system of laws that deal with ISP in particular or to modify the existing laws. The enactment of a new system of laws does have its own supporters. However, this may sometimes be in conflict with the interests of the internet technology and to certain extent may restrict to the right of freedom of information

In Indian context, the Intellectual property rights are dealt under the provision of Indian Copyright Act, 1957. The Act does not have any section dealing with piracy of computer software from the internet. Though the Act, when it comes to software takes care of offline piracy, it fails when it has to deal with online piracy. The Information Technology Act, 2000 has made significant amendments to other such as IPC, Indian Evidence Act, and Criminal Procedure Code. However, one area that existing principles of copyright may be applied to the internet through analogy, it is true, the medium does pose new challenges which analogy may be to deal with.

Thus, we strongly recommend the following amendments in (Copyright Act, 1957:

(1) Section 2(ff) defining "communication to the public" should be amended to include an explanation to take account of the internet.
(2) Section 2(ffc), which defines what is meant by software, to take into account web pages also.
(3) Section 2(hh) which defines the term duplicating equipment should include, compact disc writers, floppy drivers and electronic copying of the internet.
(4) To incorporate the existence of an implied licenses under the defenses available to users.
(5) To increase the quantum of fine that can be imposed on the violators of the copyright.
(6) To tighten the enforcement mechanisms to take into account the internet.

As far as we are concerned, ISPs should not out rightly be held liable for two basic reasons:
(1) To promote e-commerce and various transactions taking place electronically.
(2) To pave the way towards globalization, the need of time.

In order to favor ISPs the appropriate approach should be to test technological perspective of reasonable man to determine ISP's liability. The suggestions may include that ISPs should internalize losses caused by their existence as a cost of doing business. This encourages enterprise (ISPs) to take precaution against relevant losses or raise compensation for victim by spreading those costs over a broad segment of society. Next to this point, we would like to give a new dimension to extend the scope of the section 79 of IT Act, 2000 especially the phrase "DUE DILLIGENCE" as following:
(1) Posting of notices, warning to the potential users of the site not to use internet adverse to the interests of the creator of the intellectual property.
(2) A periodic reviewing of site and bulletin boards with a view to monitor violating activities at the end of users.

IV. Balance of Interests
The forthcoming issue is to decide the balance between the author's rights and that of users' rights to information. There are four criteria to be considered in determining the availability of the fair use doctrine. They are:
1. The purpose and character of the defendant's use of the allegedly infringed work, including whether such use is of a commercial nature or is for non-profit educational purpose.
2. The nature of copyrighted work.
3. The amount and the substantiality of the portion used by the defendant in relation to the copyrighted work as a whole, and
4. The effect of the use upon the potential market for, or the value of copyrighted work.

V. Enforcement of Copyright through technology

Access to knowledge and cultural goods is critical to ensure full participation of the public in political and cultural life and to ensure benefit to them from any scientific and technological advancement. The copyright system seeks to promote the efficient dissemination of knowledge in the public domain by maintaining a balance between enabling rewards to the producers of knowledge on the one hand and access to these copyrighted goods for public, on the other. It is therefore critical that laws pertaining to copyright in any country be drafted in a manner that best ensures an ideal balance between public and private interest.
The copyright laws provide various provisions against infringement of copyright material but there is a need to enquire whether the objectives behind the enactment of such provisions are met or not? Digital Rights Information Management is a preventive measure to safeguard the commercial interests of the author as well as of the ICT. But, mere prevention would not lead to actual protection against violation of the copyright, unless the rights are not enforced in case of disputes relating to copyright infringement. DRM has a great significance in litigation process as it can be used as an evidence to substantiate the claim of copyright. Earlier, it was not an easy task to grill the infringers, simply because, it was almost impossible to segregate or identify the content claimed as being infringed. With the aid of DRM system it becomes possible to hold one responsible for infringement, as being in possession of infringing material.

This paper aims to illustrate and analyze the technologies and tools available for DRIM (Digital Rights Information Management) and further objective is to enquire into the efficacy of the legislation to ensure its effective implementation and enforcement particularly in Indian context.

The obvious phenomena of DRM are executed by embedding and integrating the information of the author of the work, its owner and terms of use in the work itself by way of encryption, encapsulation, watermarking, encoding etc.. The DRM system evolved with the CSS (Computerized Scrambling System) way back in 1996. This system relied on simple encryption algorithm requiring license agreement that restricted the inclusion of features such as digital outputs that could be used to extract high quality digital copies of the film in their players. Micro Soft Vista contains a DRM system called the protected media path, which contains the protected video path (PVP).PVP can encrypt information during transmission or the graphics card , which makes it more difficult to make unauthorized recordings. AACS is a DRM system for HDDVD and Blu-Ray discs developed by the AACS licensing administrator. The broadband Flag concept was developed by Fox Broad casting in 2001 and was supported by the MPAA & FCC. Many online music stores employ DRM to restrict usage of music purchased and downloaded online.

The another application of DRM is the Enterprise Digital Right Management(EDRM) to control of access to incorporate documents such as MS word, PDF etc. EDRM is generally intended to prevent unauthorized use of proprietary usage. EDRM typically integrates with contents and their arrangement. Digital watermarks are unobtrusive features of media that are added during production or distribution. A digital watermark involves Data Steganographically embedded within the audio or video data. Watermarks can be used for different purposes that may include: For recording the Copyright owner, for recording the distributor, for Recording the distribution claim and for identifying the purchase of the music. Watermarks are not complete DRM mechanism in their own but are used as a part of a system for DRM.

The overall economic scenario of our country is not very sound as indices are indicative of that. The prime concern of the country is to ensure the balance of the commerce as well as of the intending users of Intellectual property. If a summary is conducted to parse the status of individual, be it be their dealing in creation of Intellectual property or in its trading and also the people who are at the target for their consumption then the picture that comes in mind is none else but is a true story narrating plight of the citizens. .Probably this might have been the reason to not to give full effect to the policies followed by developed countries having altogether different circumstances prevailing there.

We recommend as follows:
(1) There is well known concept of "parallel importation" providing a country to import the intellectual property at cheapest rate. The expenses associated with the creation of intellectual property in India to make it marketable are still cheaper than any other part of the world, further we are not well equipped with the devices used to comply with DRM and further no initiatives have been made by the countries.

(2) Technology involved to comply with the DRIM is expensive and not affordable for the people trading particularly in small scale industries nor would the user be able to pay the enhanced price due to adaptations of DRM techniques. Therefore as a consequence the vital interest of the people would greatly be adverse.

(3) India, if complies with the international treaties as WCT and WPPT etc. or other conventions detrimental to its own interest, would ultimately lag behind in the development. Therefore, no strict adherence to DRM policies can be implemented into by way of existing legislation but still there is a need to have a glance on the provisions governing and regulating Intellectual Property Rights in view of advancing technology.

(4) Having studied the entire scenario in Indian perspective, fair dealing emerges as a great defense for the promotion of Intellectual Property and to make people enrich in their knowledge. India is a country where people cannot pay even for the basic expenses of the education as tuition fees and therefore it is not fair to expect them to spend for expensive books or other intellectual properties as their prices are rising exorbitantly, particularly the online research material or the books that can be made available only at educational institutions or the public libraries. Adopting DRM would be a difficult task as it is not easy to distinguish the nature of use of intellectual property. The copyright law provides the concept of public domain which in turn provides that after the expiry of the term the work would fall in public domain but with DRM it is not possible.

(5) Authorities responsible to adjudicate the claims of intellectual property must be well trained to handle the cases efficiently to ensure fair use of intellectual property.

(6) Enforcement agencies must get incentives for their efforts to monitor and surveillance the suspicious use of intellectual property by awarding them a share of benefits to encourage them to work well.

(7) Heavy fine must be imposed on infringer, a database of the violators has to be maintained and reviewed periodically and be publicly issued to discourage and harass the violators.

(8) Government should frame such law by which the development, production and distribution or sales of DRM infringement tool and software become too costly to be used as its use cannot be completely prevented due to the very versatile nature of technology.

(9) Price of the intellectual property should be regulated in a manner to keep it low in cost than the value of expenses likely to be incurred to reproduce it in other way round.

(10) Some DRM technique and tool should be developed in such a way that they can provide more security and which can comprehensively check at what extent or level the user have the access.

(11) Watermark is not a good DRM protection tool, because as in case of paper based intellectual property, where material can be reproduced by typing the contents manually similarly in case of digitized intellectual property it can be removed by some tool, however after removal of watermark the quality of work decreases but still it may be used.

(12) DRM should be implemented to cover only those intellectual properties which are very sensitive or in which there is a lot of money or effort is involved in its development.

(13) Government should formulate policies to encourage for the development of DRM tools and technique.

(14) Awareness of intellectual property rights as well for liability in case of violation should be promoted by educating general public, market players and users.

(15) For scientific development and for study purposes the copyright material must be made available free or with minimal charges.

(16) Enforcement agencies must ensure that the creator is getting due benefits, but public interest must not be ignored.

(17) Use of DRM protected material should be promoted and appreciated. Static information in registry of software is to be incorporated so as in case of any change in it, inbuilt software stops working or does not allow the contents to display.

The analysis in this paper brings forth the fact there is undoubtedly a very strong regime that protects computer software, off-line, but this existing regime fails miserably when faced with the problems that the internet throws up. The issue that arises is whether one wants to extend the existing intellectual property to the internet or let the internet find the solution for itself, as it has in certain cases, with concepts like shareware, copylefting etc. Alternately, should there be a new system of law that should govern intellectual property on the internet?

The question then is whether to enact a whole new system of laws that deal with internet in particular or to modify the existing regime. The enactment of new system of laws does has its supporters, especially among the software lobby, but it poses certain problems. It would also mean the creation of whole new system to enforce these laws. Moreover, this would lead to the destruction of the very concept for which the internet has been created, that is, the freedom of information.

The present legislative scheme does not have specific chapters on the piracy of computer software from the internet. The Copyright and the I.T legislations are at times regarded as myopic in approach. At the best they take care of the problems of off-line piracy. Thus there is need of radical overhauling of Copyright and I.T. legislations specially the conceptual ambit, contents of rights and liability redressal.

Praveen Rani Gaur, S.K.Visen: Adapting the Copyright Regime to Computer Software.
Saleem Akhtar: Infringement And Remedies Of Copyright in India: A Judicial Approach.
Souvik Ganguly: International Legal Regime on Protection and Enforcement of Copyright and Challenges of the Internet.
V.K.Gupta : Copyright For The XXI Century : Remedies And Enforcement.
Mohd. Salman Waris: Computer Piracy , Copyright Concerns And Conflict Of Information Technology: Need for an Interactive Approach.

Web References

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