Copyright Infringement in Digital Space: Issues and Challenges

    The advancement of Digital Technology has been one of the finest creations of the human mind. Technology has opened its gates to a wide range of possibilities in various areas like media, entertainment, communication, advertisements and education. However, the easy access to materials available on the Internet has posed a great concern for Copyright infringement. Copyright is one of the most important Intellectual Property Rights which denotes the rights possessed by the creators for literary and artistic works. It includes works from books, paintings, computer programs, films, databases and maps, to name a few. Digitalisation has made it considerably easy to copy, replicate and sell the works of a copyright owner without his permission and detection of such infringement becomes difficult. This has posed a great threat to the right of the copyright owners or creators.

    Copyright and Internet: Digital Scenario

    The internet services in India were made available to the public domain in 1995, since then it has grown tremendously in India. Earlier, copyright law was resorted to protect the original literary works published, now the biggest challenge is how would copyright law protect the ideas of the human mind.

    International Regime

    One of the first attempts made to systematized copyright law globally was through the Berne Convention back in 1886. It provided for an international court at Hague and a minimal amount of copyright protection. In 1994 the General Agreements for tariff and trades (GATT) realized the importance of copyright laws in felicitating the international trade introduced “Agreement on Trade-Related Aspects of Intellectual Property” (TRIPS), subsequently “World Trade Organization” (WTO) was also instituted in the same round with establishment of copyright treaty 1996 aimed at providing protection to computer software and internet database, works published on internet. Finally, in 1998 The United States came up with “Digital Millennium Copyright Act” (DCMA) which provides protection against copyright infringement of works on the internet.

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    Legal Scenario in India

    Copyright in India is protected under Copyright Act,1957 since then several amendments have been made from time to time to suit the changing needs of the society and to ensure protection to the creators of the work. The main aim of the act is to protect the works of the creators and owners of the copyright against unauthorised use. Recently the Copyright (Amendment) Act, 2012 was enacted which is considered to be more substantial. The main reason behind this enactment was to bring the act in conformity with the World Copyright Treaty 1996 and WIPO Performance and Phonogram Treaty 1996.  The Copyright Amendment Act of 2012 extended its provisions for the protection of copyright in work in the field of digitalisation. It also laid down provisions for penalties to be awarded against the infringer, rights of management information, the liability of internet service providers and introduction of statutory licenses for cover version and broadcasting organiser. It also aimed at ensuring proper distribution of royalties amongst the creators and owners of the work. The law also aimed at creating certain acts as exceptions, which means that certain acts shall not amount to infringement. Section 52 of the act lays down certain acts which shall fall under the heading of Doctrine of Fair Use. This section is enacted in conformity with the Berne Convention 1885, TRIPS Agreement 1995. The Indian Judiciary has also played a pivotal role in protecting the rights of Copyright owners in the era of digitalisation.

    John Doe Order in India

    John Doe orders is one of the most sought mechanisms adopted by filmmakers and other artistic media workers to prevent online privacy carried out by ISPs and unauthorized, illegal distributors. [1] The dictionary meaning of the term is ‘Anonymous party’, it is a fascinating concept where the party to the proceedings is unknown. This order is generally resorted there is a reasonable apprehension that a person’s book, movies, Tv show, website blogs may be pirated or copied. Once the application is filed, the court passes cease and desist order to provide protection to the author’s/owner’s work. [2]

     It was in 2003 that John doe order made an entrance in the Indian legal regime, in the case of Taj Television & Anr v Rajan Mandal & Ors. [3] However, it has also been criticized by the courts, for instance the Delhi High Court in the case of Star India v Sujit Jha and Ors [4] passed cease and desist order to block 73 websites to which the plaintiff complaint against on the contention that “It is extremely easy for the website to provide access to the blocked content through another URL since a mere change of a character in the URL string will result in a completely new URL.” [5]. Subsequently in an appeal before the division bench the Delhi High Court criticized the decision rendered earlier that the step to block 73 websites was far overreaching and restricted the blocking of the websites.

    Legal Issues and Challenges

    Jurisdictional Challenge

    Since the Internet is an abstract space, determining the jurisdiction is filled with complexities and when it comes to the violation of copyright infringement online, there may be different countries involved and thus the issue of jurisdiction always arises. The place of jurisdiction can be determined by varied factors such as origin of dispute, place where the material was last displayed, storage area etc. [6]. Furthermore, copyright laws differ from region to region and violation in one region does not necessarily mean violation in another country and this creates conflict between the countries.

    Permanent Injunction

    A decree of Permanent Injunction was passed against the defendants restraining the defendant websites- their owners, proprietors, officers, servants, employees or anyone claiming through or under it from streaming, reproducing or making available to the public or communicating to the public or through any other mode a work, content, program or any work belonging to the plaintiff in which copyright subsists. An order was also issued against the ISPs to block access to the defendant`s website. The plaintiffs were permitted to implement the mirror/redirect/alphanumeric website under Order 1 Rule 10 of CPC in cases where the new means of accessing the same primary websites have been injected.[7]

    Harmonious Construction amongst the State

    The IPR laws differ to some extent among the states itself this also adds to the problem in the existing regime, for instance some states in India have been conferred with the power to compel ISPs to examine some content whereas there are several states who do not hold such power. This creates disbalances in the system and as it has pointed above copyright infringement over the internet involves numerous people based out at different places, to deter the same harmonious construction between the state laws and centre is imperative.

    Conclusion

    Even though digitalisation has given opportunities to the creators to show cause their work and creations effectively it has at the same time also raised concerns for infringement of the rights belonging to owners. However, even though several efforts have been made at both International and national level to overcome the obstacles so as to ensure the protection of copyrights in the digital arena still a lot is to be done.  At the national level, there is a necessity to create awareness among the people, to train the enforcement agencies and develop proper mechanisms to prevent infringement. At the International level, there is a need to ensure that the provisions and principles enriched under International treaties and conventions have been complied with so as to ensure effective management for protection of copyright in the digital world.

    REFERENCES

    [1] Subhasis Sah and Sourav Keshri. “Challenges to Copyright Work in Cyber Space”, 3 Journal of intellectual property rights 35 (2008).

    [2] Reliance Big Entertainment Pvt Ltd v. Jyoti Cable Network & Ors CS(OS) No. 1724 of 2011.

    [3] Delhi HC (2003) F.S.R. 22.

    [4] CS (OS) 3702/2014.

    [5] Ibid.

    [6] Dr. G. Mallikarjun, “Online Piracy”, 5 International Journal of Engineering Technology Science and Research (2018).

    [7] Fareed Ahmad Rafiqi and Ifthikar Hussain Bhat “Copyright Protection in Digital Environment: Emerging Issues” 2 International Journal of Humanities and Social Science Invention (2013).


    BY SHIVAM SINGH | NATIONAL LAW UNIVERSITY ODISHA

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