With the advancement in technology, the creators around the world are plagued with the menace of Copyright infringements. A person can easily misuse others’ copyrighted works because of the easy access to materials on the internet. These works may consist of literary, artistic, musical, and dramatic elements and may also include a phonogram and a cinematographic film. Many of these works are pirated online due to which the economic interest of the owners is severely affected.
The article aims to discuss some of the challenges posed by the owners of intellectual property in this era of digitization. It also discusses the remedies provided for copyright infringements under the Copyright Act, 1957, and the various international treaties and conventions that govern the copyright mechanism.
- Sanctity- the quality of being very important and deserving respect.
- Encroach- intrude.
- Subsist- remain in force or effect.
- Escalation- a rapid increase or rise.
- Attune- accustom.
Copyrights aim to protect authors (writers, artists, music composers, etc) on their creations. They protect various works such as novels, poems, plays, databases, films and TV, music compositions, paintings, photographs, sculptures, architecture, computer programs, etc. Under Copyright, two types of rights are provided to the authors:
- Economic rights: These rights allow the owner to derive financial rewards from the use and exploitation of their work. Under this type of right, the creators can prohibit reproduction, distribution, public performance, broadcasting and communication, translation, and adaptation of their work.
- Moral rights: These rights highlight the personal link existing between the author and the work. Under such rights, the owner can claim to have a ‘Right to have authorship recognized’ (referred to as Paternity Right in India) and the ‘Right to integrity’ (object to work being modified in a way that may cause harm to reputation/honor of the author).
The advent of technology and the digital era has posed a great threat to the creators as any person hiding under the cloak of anonymity can infringe on the rights of the intellectual property holders. It is easier than ever to copy, download, and distribute the intellectual property of others, such as songs, videos, movies, and writings. So, the new technologies have made the administration and protection of copyright quite difficult. It has opened up the possibilities of widespread unauthorized copying and distribution of copyrighted works materially affecting the economic interest of the owners.
Fair Use Doctrine
It is important to note that it is not necessary that all the works which are copyrighted cannot be used by other persons without prior permission of the owner of such copyright. There is a legal doctrine of ‘Fair Use’ which permits a person to use any work which is protected under the Act with limited usage of such work to maintain the sanctity and originality of such work as well as the registered proprietor of the work. This is an exception to the law of copyright and a significant limitation on the exclusive right of the copyright owner. The fair nature of the dealing depends on the following four factors:
- the purpose of use;
- the nature of the work;
- the amount of the work used, and
- the effect of the use of the work on the original.
Section 52 of the Copyrights Act, 1957 provides for such instances that will not be considered as infringements of copyrights. Some of these acts are:
- Private use, including research
- Criticism or review, whether of that work or any other
- Used to report current events (in a newspaper, magazine or similar periodical; or by broadcast or in a cinematograph film or using photographs)
- Used for a judicial proceeding or the purpose of a report of a judicial proceeding.
Copyright issues in Digital World
The business and internet are changing every day as people are becoming more and more aware of copyright rights; that, however, does not discourage potential infringers and hackers from trying to encroach on other’s property or violate the privacy of people. Some of the areas which are most affected by the development of digital technologies are discussed below:
The music industry is where copyright law becomes blurred and complicated because of the emergence of new technologies. For instance, the debut of interactive streaming services, like Spotify, has encouraged the growth of music consumption and the overall revenue of the music industry.
Copyrights protect music compositions and the ‘related rights’ protect performers like the musicians and singers. These songs are copyrighted for the term provided in the Copyright Act, 1957, i.e., for sixty years from the beginning of the calendar year next following the year in which the author dies.
During the time the copyright subsists, there may be various kinds of copyright infringements which the owners might be confronted with. There may be cases relating to non-payment of proper royalty fees or use of the work without a license etc. Besides this, piracy is another concern in this era. Pirated CDs and DVDs are easily available in the market at a much cheaper rate. This causes significant losses to the actual owner of such works.
Moreover, because of the easy availability of the internet, there has been an escalation of illegal downloads from the internet. It is becoming more and more difficult to control the broadcasting of materials on the internet.
Social Media has become the fastest and the most popular means of communication in recent times. In addition to connecting with people around the world, these platforms provide a free space for people to express and share their ideas and other works with people. Social media is also used by many businesses to reach a wider audience at almost no extra cost. However, these works shared by the authors and creators may be copyrighted work of the person sharing such content. This implies that sharing such content without the prior permission of the owner might land a person in a copyright infringement suit.
Therefore, there is a need for proper care and caution while sharing anything on social media, like photographs, songs, videos, write-ups, etc.
Another important aspect to note here is if memes that are shared on various social media sites constitute an infringement of copyrights. These memes often use pictures that are already available online and modify them by adding humorous messages to them. The photographs or drawings that are used might be the copyrighted work of another author and using it without authorization will cause violation of copyrights. However, the defense of ‘fair use’ may be taken, but it has to be shown that- the intention to compete with the copyright holder was not there, and improper usage of the original photograph/image/video, etc. was not done.
According to section 2(c)(i), Copyrights Act 1957, “artistic work” also includes photographs. Although it is advisable to get the works registered as copyright because it is accepted as a “proof of ownership” by the courts, it is not mandatory in India.
The age of the internet has made it darn easy for the people to steal a picture, it is as easy as right-click and saves. This has presented a great challenge before the owners of such photographs as their original works are being used without authorization.
According to Section 2(ffc) of the Copyright Act 1957, a “computer programme” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result. Such computer programmes are included in ‘literary works’.
These Computer Programmes are pirated online due to easy access to the internet. Some of the examples of software piracy include:
- Creating a copy of the software and selling, distributing or exporting it
- Renting the software
- Selling of computer hardware machines with pre-installed or pre-loaded pirated software
- Copying of software programs using CD-R technology
Chapter XII and XIII of the Copyrights Act deals with civil and criminal remedies for copyright infringement respectively.
Civil remedies include interim or permanent injunctions; payment of damages; a rendition of accounts and; delivery and destruction of infringing copies. Further, administrative remedies may be granted including the detention of the infringing goods by the customs authorities
The Act also provides for criminal liabilities in certain cases of copyright infringement. Section 63 states that any person who knowingly infringes or abets the infringement of copyrights shall be punished with imprisonment for a term which shall not be less than 6 months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.
Further, Section 63A provides for enhanced punishment for the second time or subsequent convictions. Other provisions in the chapter also provide penalties for offenses such as using infringing copies of a computer program, making or possessing plates to make infringing copies of works, and making false entries in the Register of Copyrights, etc.
Further, it should also be noted that the entire scheme of the Copyright Act makes it amply clear that all the provisions of the Act must be applied to electronic and digital media in the same manner they are applied to conventional media.
International Treaties and Conventions
· Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention is an international agreement governing copyright, which was first accepted in 1886. It formally mandated several aspects of modern copyright law and also introduced the concept that a copyright exists the moment a work is “fixed”, rather than requiring registration. It also enforces a requirement that countries recognize copyrights held by the citizens of all other parties to the convention.
· Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
The TRIPS Agreement is an international legal agreement between all the member nations of the World Trade Organization (WTO). It sets down minimum standards for the regulation by national governments of many forms of intellectual property (IP) as applied to nationals of other WTO member nations. It introduced intellectual property law into the multilateral trading system for the first time and remains the most comprehensive multilateral agreement on intellectual property to date.
· World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty or WCT)
It is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provided additional protections for the copyright to respond to advances in information technology. The WCT emphasized the incentive nature of copyright protection, claiming its importance to creative endeavors. In addition to the rights recognized by the Berne Convention 1885, it granted three economic rights namely, ’right to distribution’, ‘right to rental’, and ‘right to communication to the public’. It assures protection for any work in the digital world for at least 50 years. It also ensured that computer programs are protected as literary works.
· WIPO Performances and Phonograms Treaty (WPPT)
The WPPT is an international treaty signed by the member states of the World Intellectual Property Organization and was adopted in 1996. It was adopted to develop and maintain the protection of the rights of performers and producers of phonograms in a manner as effective and uniform as possible.
Although the digitization has proved to be beneficial for many artists and creators, it has also raised concerns as there is an increasing number of copyright infringements. It is easier than ever to steal others’ copyrighted works because of the easy access to them on the internet. Any person hiding behind their computer screens can access the material available online, be it music recordings, photographs or, even computer software/programmes.
It may also be stated that various amendments to the Copyright Act, 1957 have attuned the provisions to international treaties and conventions to a great extent. However, there are still some grey areas about which, the Act does not lay down the rules. Therefore, there is still a long road ahead for the copyright provisions to completely protect the rights of the owners of such copyrights. It has to be ensured that the laws are properly and strictly complied with.