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Emerging trends in Digital Copyright Law

The Internet's pervasiveness as an outstanding and totally modern mediator in all-encompassing human contact on a global scale has posed a significant challenge to the copyright works of lawyers and others. The Internet enables near-simultaneous replication of original quality and rapid global dissemination of copyrighted materials. The digital quandary is related to the contrast between the notion of knowledge wants to be free and the fear of more recorded information access in a digital system.

In this paper, the author explores how different works are protected under copyright law, advancements of copyright in this digital era, and what are the challenges of digital technology in terms of intellectual property. Additionally, the paper will illuminate gaps in the current system of copyright protection as well as the evolution of emerging Indian copyright law.

Introduction
As long as there was no printing press, no one was concerned about their work being stolen since making copies was so laborious and prone to error that only a few copies were made. This was a result of the printing press and the subsequent publication of multiple copies of literary works at the beginning of the fifteenth century. Creative works such as literary, musical, theatrical, or aesthetic works are the recipients of copyrights, which are exclusive rights awarded to their creators.

At first, most rules and regulations for copyright protection were based on the print medium. However, this has gradually evolved into a broader concept. With the advent of the Internet, new types of intellectual property are being shared quickly today. Nevertheless, the internet has created a new set of challenges for the current copyright regime, as numerous modern techniques have sped up the likelihood of copyright infringement.

When it comes to safeguarding technological developments, copyright is the most crucial component of legislation. Today, the digitalization of a rights holder's works without his consent has made them much easier to replicate, imitate, and commercialise. Earlier, copyright was often referred to as the technological legacy by some. Any artist, author, blogger, photographer, music composer, or filmmaker must safeguard their work. It is also vital to determine how much of their work may be properly copied, distributed, quoted, or criticised by another individual in order to safeguard their rights.

It is a collection of rights that includes both economic and moral rights. Economic rights can be transferred, while moral rights remain with the inventors and, later, their legal heirs. With the increased usage of social media, the rights granted to artists by copyright law have been severely harmed. Our copyright legislation, which is quite ancient, could not anticipate the technological advances of the digital age. The legislative modifications attempted to embrace many components of technology but did not cover all bases. As a result, it is extremely difficult for copyright law to deal with difficulties emerging from copyright infractions including the use of technology.

There are 3 important aspects of intellectual property:

  1. Ideas must be expressed. (Mansoob Haider v. Yashraj Films - Dhoom 3 Case)
    The identity between two works must be substantial. The copyright protection should not attribute to the narrations of stock incidents.
     
  2. Fixation.
    Storing of ideas in some form is essential to claim ownership.
     
  3. Originality.
    The work done must be original as in not blatantly copied from someone else's work. It should originate from the author itself.

Copyrighted material is that what is created by the author by his own skill, labour, and investment of capital, maybe it is a derivative work which gives a flavour of creativity.[1] The author must produce a material with exercise of his skill and judgment which may not be creativity in the sense that it is not novel or non-obvious but at the same time it is not the product of merely labour and capital.[2]

Digital Advancements

The advancement of digital technology is most likely the best creation of the human psyche. Innovation has paved the way for a diverse range of potential outcomes in fields such as media, entertainment, communication, advertising, and education. However, the streamlined approach to the internet for any type of information or work has caused significant concern due to copyright violations.[3]

In the last decade, the advancement of digital technology has given rise to a myriad of computer-based works, like computer programmes, databases, computer software, and other multimedia works on the Internet. In accordance with the TRIPS Agreement, copyright rights are provided for computer programs in the same way they are for literary works in India through the Copyright Act of 1957.

The offender of copyrights can be tried in court and made liable for the penalties outlined in the Copyright Act. Making or distributing illegal copies, as well as using without proper authorization, are examples of these offences. Given the distinctness of computer programmes from other literary works, the law has made the knowing use of illegal copies of computer programmes an offence with a minimum penalty.

To qualify as an 'intellectual invention,' a database must have originality of expression, meaning that it is not a copy of another database and is the result of the author's intellectual effort. Under the Act, databases and computer programmes have identical rights in the event of infringement. It is worth noting that Indian courts respect copyright in databases.

Section 43 of the Act provides for compensation of one crore rupees to the injured party from the individual who violates the databases' copyright and other cyberspace regulations. Section 43 of the Act has a broad reach and encompasses cases such as cracking computer codes, computer trespass, digital copying, invasion of privacy, data theft, and so on. Section 66 of the I.T. Act specifies the penalties for such offences.

The Indian Copyright Act of 1957 does not define multimedia works since they defy existing categorisation. Copying multimedia works is simple because the new copies are identical to the original. The legislation makes no explicit provision for the protection of the originality of multimedia works on the internet. The classification of multimedia works is a problem that must be addressed thoroughly.

Challenges to copyright

The advancement of technology has made it easier for the average person to communicate, distribute, and reproduce works. Digitalization has made it significantly easier to manufacture identical copies and distribute them in a fraction of the time to a population of millions dispersed over vast distances. All of this may be accomplished without alerting the owners and finally exploiting their interests. The internet has become a menace as well as a necessity. Several challenges have posed a danger to the rights of copyright holders.

Internet:

Because of the Internet's decentralised structure, any user can distribute a work in cyberspace indefinitely through an infinite number of outlets, making it more difficult to establish whether the work is a replication or copy of a protected work, resulting in worldwide piracy.

Copyright Violations:

Just with the help of few clicks, everything on the internet can be accessed.

Downloading and Uploading:

The incoming and outgoing of the data from the hard disk is a way for duplication, obviously exceptions are there, and that amounts to a violation.

Multimedia Works:

Using media without the prior consent of the original owner also amounts to a violation. Also, there is no specific law governing it.

Social Media:
With the advent of the social media, the violations are increased as people seems to believe that everything, they share on the internet comes without any cost. Copyright infringement occurs when someone re-posts and claims ownership of a copyright-protected work. Using content from social media platforms without crediting the author is a challenge for social media content makers. Several measures are there to curb this problem but still, the problem subsists.

Some of the other difficulties confronting internet content in terms of copyrights are as follows:

  1. The videos that are available online can be copied without lowering the quality of the video.
  2. Illegal downloads of music and movies from web platforms.
  3. Create bogus websites for e-commerce, marketing, and selling by plagiarising the original copyright holder's material.
  4. It is simple to convert and send copyrighted information without the permission of the owner of the copyright.
  5. The market availability of pirated software such as Microsoft, Adobe, and others at extremely low prices without a licence, resulting in significant losses to the original owner of copyright.
  6. Pirated movie and music CDs are widely available in stores at extremely low prices.


International advancements

Countries all throughout the globe have aided in the preservation of intellectual property by responding amicably to international accords on a regular basis. These accords provide basic standards of protection, and each signatory nation incorporates these requirements into its domestic legislation in accordance with them.

Berne Convention

The first step toward copyright protection was accomplished at Berne in 1886, when the countries signed the Berne Convention. The Convention strives to preserve literary and creative works, as well as the rights of writers. It established minimal criteria of protection and functioned under three principles: the concept of national treatment, the policy of automatic protection, and the idea of protective independence.

Universal copyright Convention

This convention, signed in 1952, resolved to provide appropriate and effective protection for the rights of writers and other copyright holders. The author's copyright was protected for the duration of his life and for 25 years after his death. The Convention further stated that it has no bearing on the requirements of the Berne Convention.

Rome Convention

The Rome Convention was signed in 1961, and it broadens the scope of the Berne Convention by ensuring the rights of performers, producers, and others, as well as protecting literary, artistic, and cinematographic works.

TRIPS

During de-colonization, India had to depend on developed nations for growth. WIPO had to take technological concessional approach towards developing countries because patent gives the creator monopoly which will lead to excessive in prices disincentivizing developing nations. Developed countries argued that it would not be able to grant monopoly on everything.

To balance the interest, in 1986, Uruguay round of Trade Negotiation took place. TRIPS was one of the agreements of WTO. TRIPS is the global law. Developed Nations said, IP rights must be included within WTO because lack of protection of IP rights will lead to barriers to legitimate trades.

AV Ganeshan believed the developing countries weren't satisfied in having a hegemonized and overarching institution which created a uniform IP rights regime for everyone rather they should have a say in creating IP Laws, in what they can grant monopoly or not, nature of monopoly of patents through domestic laws. It maintains that copyright protection should only apply to expressions, not ideas.

WIPO

In 1996, member countries recognized the need for a treaty to address the protection of copyright as new technologies evolved. The WIPO Copyright Treaty was adopted by the Diplomatic Conference in Geneva in December 1996 and came into force in 2002. It is a specific arrangement under the Berne Convention that strives to defend copyright and author rights in a digital context. In contrast to the TRIPs agreement, the WCT agreement covers both object code and source code as computer programmes. The treaty also affirms writers' rights to distribution and renting, as well as granting a greater right to public communication.

Copyright law in India

In India, the Copyright Act 1957 governs the copyright protection. The 1994 amendment saw technological changes. The Millennium Digital Copyright Act, passed by the Indian government in 1998, amended copyright legislation to reflect the reality of digital media. The 1999 amendment saw compliance with TRIPS agreement with respect to copyright.

Section 57 of the Act gives writers some rights to claim their own authorship over their work, impose limits on illegal use, and seek damages if someone edits, distorts, modifies, or mutilates their work even after attributing it to someone else, if such activity undermines the authors' reputation.

Section 52A of the Act requires that particulars such as the name and address of the person who created the work or who owns the copyright, as well as the date it was published, be included on sound recordings and video recordings. The right of distortion also available. The Act talks of fair dealing of work related to literary, dramatic, etc.

The aim of the Act is to safeguard the expressions of creators and owners of the copyright from abuse. The amendment of 2012 brought significant new modifications into force, bringing Indian copyright law in line with the WIPO conventions of 1996. The Copyright Amendment Act of 2012 not only harmonizes with the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty, but also expands its provisions to address threats to copyright protection in the digital era.

The updated law, in addition to incorporating technological safeguards, ensures that fair use continues in the digital age by including unique fair use provisions. Many author-friendly adjustments have been made, as well as special provisions for the disabled, amendments allowing access to work, and other amendments to streamline copyright administration. The author of the work has unique rights (Moral rights as well) under Section 57 of the Act. The Act includes various works for personal use.

Emerging Trend
The most recent Copyright (Amendment) Act, 2012, has acquainted the crucial alterations with the foundation plan for copyright insurance expressed as beneath:

  1. Certain part of exemptions has been made applicable to the wide variety of work.
  2. Technological protection measures are provided to protect the authors of the work, and anyone who circumvents such protections faces criminal penalties.
  3. Fair dealing exemption's ambit has been stretched out to public use as well.
  4. Importation of duplicates.
  5. Under s. 65B of the Act, unauthorized alteration or deleting of right management information has been made a criminal offence.


Along with the changes mentioned above, the copyright law has been reformed in a number of other areas, including the implementation of special provisions for disabled people, streamlining the copyright administration process, enhancing performers' rights, and a slew of other author-friendly changes. It is one of India's significant achievements because it made the adjustments to bring it in line with the treaties without even officially ratifying the WIPO mandate. The Indian judiciary has also played a distinctive role in defending copyright holders' rights in the digital age.

In the case of UTV Software Communications Ltd., v 1337X.To, it was found that the digital infringer is no way different than the physical infringer there is no explanation as to why a crime in the physical world is not a criminal in the digital world, especially because the Copyright Act makes no such distinction.

In Disney Enterprises Inc. v. Kim Cartoon, the court held that the defendants were publishing content on their website that was created by the plaintiff without their permission or license; the court decided in favor of the plaintiff, giving them damages and imposing a permanent injunction against the defendants. In Microsoft Corp. v Satveer Gaur, it was found that Defendants were employing illegal content. The Court granted the Defendants a permanent injunction.

Section 66 of the IT Act provides for imprisonment of up to three years and a fine of up to two lakh rupees for the offence of illegally distributing copyrighted work online. The John Doe order is a relatively new technique used by Indian courts to minimize incidences of digital piracy in India. John Doe orders require extremely little information about the accused, whose identity is unknown at the time the petition is filed.

The Indian courts have the authority to issue an injunction to order John Doe under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908. All of the laws and orders described above aid in dealing with threats to copyrighted work and protecting the rights of authors and other right holders in India.

Conclusion
It is undeniably true that technology innovation has spurred creators to create and project their ideas more efficiently, but it has also posed a threat to the works' protected communication and dissemination. The laws were outperformed by the internet's silence. There is a significant duty on writers, whether they are artists, filmmakers, music composers, or computer programmers, to create new works so that they are adequately protected and do not incur losses due to gaps in the law. The sanctions for infringements are insufficient and do not establish deterrence in the eyes of infringers.

Customers should also be cautious about the author's originality while purchasing content. The crowd's mindset is crucial. Given the current circumstances, when consumers receive somewhat worse quality material for a lower price, they are less concerned with uniqueness and accept the items. Consumers avoid going to court and reporting such information since it is accessible and inexpensive, whether digital or tangible. They are also concerned about the protracted legal procedure.

However, copyright infringement might also lead to a better idea. (Anurag Kashyap's situation) He got ideas for his movies by watching pirated movies. So, the use of the piracy also plays a certain role. Also, it can be said that Game of Thrones was successful due to its pirated versions. The problems related to copyright infringement is alarming, so its regulation must be taken care of.

Bibliography:

  1. Indian Review of Advanced Legal Research
  2. All India Legal Forum
  3. Ipleaders
  4. Journal of Intellectual Property Law
  5. Law times journal
  6. IIPRD discussions.

End-Notes:

  1. CCH Canadian Ltd. V Law Society of Upper Cananda, (2004) 1 SCR 339. (Cananda)
  2. Eastern Book Company v D.B. Mohdak, (2008) 1 SCC 1.
  3. Rama Gandhi, Emerging Trends in Digital Copyright Law, https://lawyersgyan.com/blog/emerging-trends-in-digital-copyright-law-in-india
Written By: Aadarsh Lunia

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