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Cyberspace A Two Edged Sword For Copyright

Copyright is a protection provided to the author or the owner of the work may it be published or unpublished literary, dramatic, musical, artistic work in any form provided that they are expressed in a tangible and material form. So it can be said that if it can be felt by our sense or if it can be touched or seen or heard of it is protected by the copyright.

The Copyright Act, 1957 provides the owner with certain exclusive right to use his or her work. In all other IPC (Intellectual Property Creation) to get the legal right to use or exclusive right to use their owners or inventors have to get such creation registered in order to get benefit from the creations. But in the case of Copyright it is not so, once the work gets created it gets the copyright right but it must qualify the criteria of originality and novelty first which is the basis of granting the copyright. With the development of technology there have been various ways to publish a copyrighted work introduced, amongst them by far the most popular is the Cyberspace.

Cyberspace is a borderless space available on computer networks in which communication takes place in electronic medium. As it is a borderless and vastly dense area so it is very difficult to detect who is really behind a certain act done online.

And with the development of internet and cyber world the amount of illegal activities have increased tremendously. Infringement of Copyrighted work is one such increasing crime in the Cyberspace. In the recent past there has been high percentage of breach of the Copyrighted work. What do movies like Bodyguard, Udta Punjab, Kabali, Great Grand Masti, Piku have in common?

All these movies were being made available online either before the release of the movie or within a day or two of the release of the movie and list is not exhaustive.

In India there are various laws which deals with Laws related to Copyright in Cyberspace. They are- The Copyright Act, 1957, The Information and Technology Act 2000, Civil Procedure Code, 1908 etc.

Under the Copyright Act all kind and forms of artistic , literary , dramatic work is protected. Prior to 2012 there was not much provisions which would have protected the copyright work on internet but with the amendment of 2012 in The Copyright Act 1957 various provisions have been implemented with the objective of punishing the doers of digital piracy.

Section 14:

It gives the protection to author to reproduce , make copy or record the artistic work , cinematographic films etc and it also gives additional protection of right to storing the work in any electronic or other medium.

Section 65A The Section is amended to protect the Technological Protection Measures used by copyright holders to shield their work from illegal copying or use. The Section punishes the person or infringer who circumvents the copyright of the protected work with the intention of infringing the right of the owner with upto 2 yrs of imprisonment and also is held liable for fine.

Section 65B- It makes removing of rights management info without permission a criminal offence.

Section 52- It exempts certain acts from infringement namely fair dealing with literary, artistic work etc.

Section 79 of the Information Technology Act 2000 provides that no internet service provider will be held liable for any act if it proves that such offence was committed without his knowledge or that he acted in all due diligence to prevent the commission of offence.

Under the International Copyright regime there have been various treaties and agreements made to deal with matter related to copyright online.

Such as:

Wipo Copyright Treaty, 2002

It lays down provisions related to the protection of copyrights in the digital environment.

Wipo Performances And Phonograms Treaty, 2002

It deals with rights of the owner in their negotiations with new digital platforms and distributors. It also recognizes moral right of the owner.

The judiciary as well has taken various steps to stop piracy and provide protection to the authors online such as by passing John Doe Orders - This kind of order is used when the identity of the infringer or defendant is unknown. The order is made against such person with a certain description. The courts issues order when the application has already been filed by the makers of the movie or any other work, and then in case of online piracy of the work the judicial intervention can be made. This order has been used at various occasions to block a website which generally can publish such pirated content.

All this discussion leads us to various questions which needs to be answered and some of them are-
1. What is Internet Piracy, why it is so prevalent, why it is increasing day by day and how it is done?
2. What is the liability of different intermediaries such as infringer, internet service provider and user of illegal work?
3. Problem of Jurisdiction in Cyberspace?
4. What are the laws and steps taken to stop online copyright infringement?
5. What are International Treaties related to cyberspace and copyright?

Through this work various aspects of cyberspace and copyright will be covered such as, meaning and scope of cyberspace, copyright, copyright infringement or online piracy.
It is not that the authorities do not want to stop the illegal practice of piracy but it is very hard to catch these infringers because the software these infringers use to host and distribute to the public the illegal contents is generally based outside the territory of the country.

Answer to all these questions will be given through this research work by mentioning various laws and case laws which came before the courts. We will also cover the exemptions which are provided to the general public by freeing certain activities from being an infringement to the copyrighted work. The project also covers the difficulties which are being faced by the government and the authors of the work to stop piracy online and amendments brought in the legislations related to it to combat such infringing activities.

Definitions

Meaning of Copyright

Copyright is a protection provided to the author or the owner of the work may it be published or unpublished literary, dramatic, musical, artistic work in any form provided that they are expressed in a tangible and material form for a specified period of time. So it can be said that if it can be felt by our sense or if it can be touched or seen or heard of it is protected by the copyright.

Meaning And Types of Copyright Infringement

Copyright Infringement means use of copyright protected work without due permission of the author or owner of the work. When this copyright infringement is done on a large commercial scale it is known as PIRACY.

Types of Copyright Infringement[1]

Direct Infringement
When the person directly violates one of the exclusive statutory rights of the owner. In order to hold the person liable for direct infringement he should be shown to have directly infringed the copyright of an author or owner.
Example- Reproducing, displaying, distributing a copyrighted work without authority.

Contributory Infringement
It is a act of helping a person to do a direct infringement.
Example Providing a place to be used to communicate any copyrighted work to the public.

Vicarious Infringement
This occurs when a person receives direct financial benefit from the infringement by another party and had the right and ability to supervise the infringing activity.

Meaning of Cyberspace
According To Cambridge Dictionary
Cyberspace is an electronic medium that permits computer users around the world to communicate with people and also provides access to information in relation to various things[2].

Piracy On Cyberspace
When this copyright infringement is done on a large commercial scale it is known as PIRACY. Piracy can be of many types may it be piracy of movies, music or some literary or dramatic work. And such piracy takes place online it is piracy on cyberspace.

Online Business is growing day by day on the internet where the users are participating regularly. The Companies through internet services are sharing various contents which attract the users such as movies, songs, graphics, books, etc which enables the user to view such content online sitting at home. The companies earn profit by traffic on the website plus the advertisement they get.

Why Internet Piracy?

There are various reasons to do piracy amongst them the most common among the people are –
(a) Easy to distribute it on cyberspace
(b) Difficulty in catching the infringer
(c) No specific law dealing with piracy
(d) Enforcement of law is very weak
(e) Unawareness of law and lack of police personnel

Why People Prefer Pirated Work Or Say Illegal Copyrighted Work?

a. No one wants to pay for anything which they can get for free.
b. Easy to access.
c. No one is generally caught for using a pirated version of a work.

Problems Related To Copyright In Cyberspace

Jurisdiction In Cyberspace
Generally, the issue related to jurisdiction in cyberspace occurs due to the nature of the internet which is a borderless space is having no defined boundaries which makes it very difficult for the courts to decide within whose jurisdiction case exists.

The matter related to jurisdiction is more of a case of procedural law.

In common cases two places are considered as having the jurisdiction in a case and they are-
(a) Place where defendants reside or do the business or earns profit through some activity.
(b) Place where the cause of action takes place.

But in the case of cyberspace it is different. As cyberspace has no boundaries, each case may have three jurisdictions –
(a) The country where the user resides.
(b) The country where the server hosting the transaction exists.
(c) The country of the person or the business with which the user did the transaction.

The Indian Legal System to determine the jurisdiction in the case of cyberspace copyright infringement may put reliance to both The Civil Procedure Code, 1908 and The Copyright Act, 1957.

There are various judgment delivered by the courts from time to time in order to make the concept of jurisdiction in cyberspace clear. The courts have tried to provide with certain measures and methods through which jurisdiction on internet can be decided. Although it does not clear the ambiguity related to jurisdiction but certainly shows a path which can lead to provide some uniformity in legal system. Some of them are-

Casio India Co. Ltd V. Ashita Tele Systems

The Delhi High Court held that if the website can be accessed from a particular place it is sufficient for the court of that particular place to invoke its territorial jurisdiction. So on the basis of this assumption the court passed an injunction order against the defendant by stopping him to use the website of the plaintiff[3].

 

India TV Independent News Service Pvt. Lmt V. India Broadcast Live And Ors

In this case the court held that commercial transactions at a particular location and the degree of interactivity on the website are important to decide the power to exercise jurisdiction. It held that where the website is interactive and consumer can avail services from it by subscribing to it then all such places where there is consumer bases will have jurisdiction[4].

World Wrestling Entertainment Inc V. Reshma Collections And Ors

The Delhi High Court in the case while dealing with the jurisdiction in cyberspace held that the website selling goods online amounts to carrying on business and place where ever the website can be accessed will have the jurisdiction to try the case.

Banyan Tree Holdings Ltd V. Murali Krishna Reddy

The question related to jurisdiction in case of intellectual property right infringement on internet was answered in this case.

In order to avail the jurisdiction of a court in the state the plaintiff would have to plead this and produce material to prima facie show that some commercial transaction using the website were entered into by the defendant with a user of its website within the forum state resulting in an injury or harm to the Plaintiff within the forum state[6].

Liability of Intermediaries

The main question which comes in relation to copyright infringement is that what percentage of liability should be made between the person who generally uploads the infringing content and the intermediary who provides for the platform to post such work.

The next question which pops out is who is an intermediary?

Intermediary can be classified into various sub categories like-
(a) Search Engines like Google, Yahoo, Bing etc.
(b) Online Channels or Platforms like You Tube, Facebook etc.
(c) Online Service Providers like Jio, Airtel, BSNL etc

All these intermediaries have resources and ability to block the content which is getting published on their platform or through their services.
The problem arises when some content is shared by an intermediary who is not the authorized distributor or the supplier of the content or work, the question arises that such sharing would come within the infringement of copyright or not.

This question was answered in affirmative view in the case of Super Cassette Industries v. MySpace Inc[7]. where the situation before the court was that the defendants who were the website operator and the plaintiff was the right holder who started a mode of business through virtual world of Internet and infringement of work on internet will come within the scope of infringement within Section 51(a)(ii) of The Copyright Act 1957 or not?

Section 51(a)(ii) provides that copyright in a work shall be deemed to be infringed when any person without a license granted by the owner of the copyright or Registrar of Copyright under this act permits for profit any place to be used for the communication of the work to the public where it amounts to infringement of the copyright, unless was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright. The court held that the Section prohibits a person permitting a place including a web site for profit if the work infringes copyright. So, Section 51(a)(ii) makes ISPs liable in this way.

Reason of Difficulty To Stop Online Piracy

It is not that the authorities do not want to stop the illegal practice of piracy but it is very hard to catch these infringers because the software these infringers use to host and distribute to the public the illegal contents is generally based outside the territory of the country.

Problem In Relation To Intermediaries

In previous time when everything was being published on paper and was published through some publishers. The editors of the Publishers had a easy job to look into the matter of infringement but now with the advancement of internet it has become very difficult to bring a check in the publication of infringing works.

The liability of the intermediaries will only arise in these cases only when they will be given with the duty to thoroughly monitor the content which is being uploaded on their platform by the users.

But monitoring every uploaded material by such intermediaries is no cake walk. It will take a lot of time and resources to fulfill their duty of screening down every minute publishing work. And doing this kind of work means lots of work and manpower will be required and which will indirectly mean that the services provided by them will become expensive and people will not be able to afford these services easily.

Answer To The Problem-
As no right is absolute, so should be the case of duty as well. There should be some sort of immunity provided to the intermediaries for the action of the users and hence they should be not made liable for every act of the users. But once when they know that there is some kind of infringing work being uploaded they should be given with the duty to take it down as soon as possible.

This will have two positive effects-
1. Will bring down the damage caused to the copyright owner
2. There will be fewer burdens on the intermediaries. And at any time if there is any complacency from the side of the intermediaries they should be made liable accordingly.

Liability of Infringer of The Work Online
Section 51 provides that a person will be termed as infringer if he or she does any act which comes within the ambit of exclusive rights of the author without any authority.
Some Example of exclusive right of the author of the work in cyberspace are- reproducing the work online, communicating the work, to sell the work, to offer for sale, to make copy of the film etc.

As per Section 63 The Copyright Act 1957 the infringer shall be punishable with imprisonment which will not be less than six months but can extend to three years along with fine which will be at least fifty thousand rupees but may extend to two lakh rupees.

The Section 65A The Copyright Act 1957 punishes the person or infringer who circumvents the copyright of the protected work with the intention of infringing the right of the owner with up to two years of imprisonment and also is held liable for fine.

Liability of Users
It is not only the intermediaries who provide the platform to share certain work online are liable for copyright infringement but the users of such platform online are also liable for piracy. This liability can be of various types such as sharing of pirated work, storing of pirated work knowingly.

Sharing of Pirated Work
As per the Section 65A of The Copyright Act, 1957 any person who communicates to public without any authority any copyrighted work unless it is done within the ambit of fair use can be punished with an imprisonment which may extend to two years.

For  Example: There are various online applications which provide paid contents to the subscribers, if any person circumvents and breaks the technological measures implemented by the service provider and gets the videos etc, shares with you that work. The moment you share it or forward the work some third person say your friend it amounts to sharing or communicating the work to public and thus you can be punished under Section 65A of The Copyright Act, 1957.

Justice G.S Patel of Bombay High Court in 2016 while dealing with the issue of watching pirated content online is an offence or not observed that viewing certain pirated work online may not amount to any offence but distributing, publishing, communicating the illegal work may amount to a punishable offence as per the provisions of The Copyright Act, 1957[8].

No right to privacy, speech and entertainment of the people should be taken away, government can enter into the bedroom and private life of people and stop them from doing all kind of leisure activities. There should be certain boundaries to checks and balance and for that very reason Bombay High Court held that watching pirated content may not be a crime under the copyright regime.

Although watching pirated content may not be illegal but communication of the same to the public is illegal and is a punishable offence.

Latest Stats On Piracy
According to the FICCI-Frames report for 2018 film sub-sector alone, annually loses Rs. 18000 crores (US$2.7 billion) of its total revenue to piracy and over 60,000 jobs every year because of piracy[9].

Steps Taken To Stop Piracy
As the problem of online piracy increased tremendously the law authorities in the country brought the amendment of Copyright Act 1957 in 2012 which specifically provided punishments for infringing digital copyrighted work. It is believed that these provisions brought in 2012 may be a useful weapon to fight against illegal copyrighted work use.

Some of the Amendments are-
Section 14
By the 2012 Amendment storing of the cinematographic films and sound recordings in any medium by electronic or other method is also an exclusive right of the author of the work.

Section 65A
The Section was introduced to protect the Technological Protection Measures used by copyright holders to shield their work from illegal copying or use.
The Section punishes the person or infringer who circumvents the copyright of the protected work with the intention of infringing the right of the owner with up to two years of imprisonment and also is held liable for fine.

Section 65B

It makes removing of rights management info without permission a criminal offence and punishes any person who distributes, imports, broadcasts, communicates to the public without authority any work with imprisonment which may extend to two years and shall also be made liable to pay fine.

Information Technology Act, 2000
Section 79

It provides that no internet service provider will be held liable for any act if it proves that such offence was committed without his knowledge or that he acted in all due diligence to prevent the commission of offence.

Judiciary And Its Measures
John Doe Orders- This kind of order is issued under Order 30 Rule 1 of The Civil Procedure Code, 1908 used when the identity of the infringer or defendant is unknown and the plaintiff is able to make a prima facie case that there copyrighted may be likely be pirated. So when such order is made the courts generally directs the internet service providers to disable various websites from being accessed by the users of the network. It may contain name of various websites and further instruct other unnamed websites to not use the work unauthorized.

The order is made against such person with a certain description that all the unauthorized intermediaries and person who provide any kind of services are restrained from making or communicating or distributing or releasing or uploading the work in question. An order of injunction is passed and if any person found doing any act against the order, it will allow the authorities to cease and shutdown the network or any other domain of the infringer. This kind of order is issued by the court when the application has already been filed by the makers of the movie or any other work.

There are various instances in India where judiciary has issued John Doe orders such as for the piracy case of movies like DON-2, BODYGUARD, SINGHAM, FORCE-2 etc. It is kind of a precautionary measure taken by the owners of the work and judiciary which allows them to not only to stop the financial loss but also provides with a authority to close down any stage or network which is providing their work unauthorized.

Such order is not only used in the case of movie piracy but also in various other kinds of piracy or infringement such as protecting books before it gets released, stoppage of telecast of events such as Cricket World Cup matches, Football Matches. One of the Examples is the John Doe Order passed by the Delhi High Court which was to block almost 500 websites so that pirated screening of the FIFA World Cup 2014 can be prevented. Although this kind of step by judiciary may be appreciated by the authors at large but at the same time it threatens the constitutional mandated fundamental right of freedom of speech online as it can be misused to bring down work of the authors by getting it blocked mischievously and it also does not gives any duty to the author to give reason to block certain person.

International Treaties And Agreements
To bring uniformity and predictability and avoid conflict of laws between countries the international communities have made various agreements and treaties in relation to copyright protection. The agreements and treaties to which India is a signatory or accesses are given below-
WIPO Copyright Treaty, 1996, WIPO Performances and Phonograms Treaty, 1996 are special agreements under the Berne Convention.

Berne Convention, 1886
It is an international agreement between the signatory countries that makes mandatory for equal treatment of the copyright works. India has been member of Berne Convention since 1928. The convention makes regulations for the protection of the works of the authors.

It is governed by three basic principles-
1.National Treatment-The work of the author of other states should be given same protection which it provides for its own citizens.
2.Automatic Protection- Protection granted should not be based on any condition.
3.Independent Protection- The work should be given at least protection up to the duration prescribed in the convention but if a country provides for a longer duration of protection then the work may cease if once the protection of work ceases in the origin country.

Internet Treaties

Wipo Copyright Treaty, 1996

It lays down provisions related to the protection of copyrights in the digital environment. The treaty makes it binding for the contracting countries to make provisions in their national laws to give remedy against the circumvention of technological measures which are generally used by authors online to protect and encrypt their work.

As per the Article 11 of the treaty the Indian Copyright Act 1957 introduced Section 65A and 65B to provide adequate measures against the circumvention of technological measures.

Wipo Performances And Phonograms Treaty, 1996

It deals with rights of the owner in their negotiations with new digital platforms and distributors. It also recognizes moral right of the owner. It is also known as the Internet Treaty which was enacted to provide legal regime in relation to new technological development and market related to it. It provides regulations for various aspects such as distribution rights, performers’ right, rights of producers of phonograms, right in relation to rental, obligations of the parties etc.

Under Article 17 of the Treaty the term of protection of the work is provided which is until the end of 50 years computed from the end of the year in which the performance was fixed in phonogram.

On 25th September 2018 WIPO adopted the accession of India to the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty; the treaty will come into force on 25th December 2018 in India.

It will help to provide value and protection for the work of the authors in Cyberspace. This will also help the copyright owners to get international protection as these treaties will help the owners to get reciprocal protection as India provides protection to the foreign works[10].

Exemptions From Infringement
Section 52 of The Copyright Act, 1957 provides certain acts which may be exempted from being termed as infringement of copyright.

Fair Dealing.
It provides with the protection that a fair dealing with any work for using the work for private or personal use such as using the work for certain research work, criticism or reviewing the same work or any other work, reporting the current events and current occurring, even reporting of a lecture delivered in public is not an infringement as per the said Section.

For Example-
(1) Playing music in a private party.
(2) Making spoof of a any movie.

Incidental Storage
Incidental storage of a work or performance is also considered as fair use unless the person is aware of such storage and had reasonable ground to know that such storage is of an infringing copy.

Copies of Computer Programme

1. Making of copies of a computer programme from a legal copy for non commercial personal use is also fair use and is protected from not being an infringement.
2. Making copy of computer programme for backup purposes after it has been purchased legally is also protected under the exemptions.

Need of Exemptions- By providing exemptions there is a balance maintained in relation to the right of the author of the work and the right of the common public to use such work in fair means.

Conclusion
The advancement of information technology, has introduced with various high tech versions of copyright infringement in the today’s existing world. New software’s and equipments along with developed web applications such as text scanners, portable camera phones, recording software’s, advanced phones, etc it has become very easy to replicate certain work and distribute such infringing work. It is not that government has not taken any step to conquer the problem of piracy and copyright violations but by just making laws and regulations it won’t help the cause. There needs to be various implementing bodies working on this direction of stopping piracy online.

The pirates’ online hide behind the screen and try to earn from the efforts of the authors illegally. And lack of technology to catch them along with absence of specific laws gives no deterrence to them due to which they indulge in the activity fearlessly.

The exemption of Fair use is also very important and it must be redefined with looking at the present mentality and capability of the society. The benefit provided through provision of fair use should be checked from time and again so that no undue advantage of it is taken by the public and the interest of the owner of the work should be kept in mind. The matter related to jurisdiction in cyberspace has always remained quite difficult to resolve. The courts have time and again tried to provide with certain measures and methods through which jurisdiction on internet can be decided. By viewing various judgments it can seen that it is not necessary the infringing website should have a actual place of business to provide jurisdiction to a court of that state or place a virtual place of business is sufficient for the courts to have jurisdiction in that matter.

John Doe Order concept is a developing concept and needs a set of guidelines on which the courts may order blocking of various platforms online. The over use of such powers of the court may lead to over blocking of online contents. For  Example the court in the case of FIFA World Cup 2014 ordered the blocking of various websites but it was later found that such measure was taken without any scrutiny and verification of facts and thus the High Court later reviewed its order and lessened the number of websites to be blocked. So there should certain standard or framework made which will help the courts to stop the misuse of such order. And there should be a certain body which may help the court to finalize  the list of websites etc to be blocked.

End-Notes
[1]Alka Chawla, Law of Copyright -Comparative Perspective, p.215 (Lexis Nexis, 1sted. 2013)
[2]https://dictionary.cambridge.org/dictionary/english/cyberspace
[3]2003 (27) PTC 265 (Del)
[4]2007 (27) PTC 177 (Del)
[5]2014(60) PTC 452(Del)
[6]2010 (42) PTC 361 (Del)
[7]2011 (48) PTC 49 (Del)
[8]https://www.livemint.com/Leisure/L7NjKAoe7L3MqXe6XpQ5FK/
[9]http://businesseconomics.in/piracy-indian-film-industry
[10]http://www.wipo.int/treaties/en/notifications/wppt/treaty_wppt_92.html

Written By- Vibhav Vinay Kumar, College- Jamia Millia Islamia, Delhi
Email- [email protected], Mobile No- 8800578238

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