1. INTRODUCTION:

Extension of copyright protection to internet may create some problems like fixing, mixing and remixing of information in online is very easy .Each user can be a net publisher. Modification of data is also very easy and as cyber world is not limited by geographic boundaries, information can be easily communicated. As a result, internet merely represents an arena in which the infringement of copyright is rampant and just beginning to be policed. The following discussion vivaciously evinces the challenges of copyright in cyberspace.

2. Copyright

Exclusive right to do or authorize others to do certain acts in relation to:

§ Literary, dramatic or musical works;

§ Artistic works

§ Cinematograph films and

§ Sound recording.¹

Sec 2(ffc) – “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. ²

3. Cyberspace

The word “cyberspace” was coined by the science fiction author William Gibson, When he sought a name to describe his vision of a global computer network, linking all people, machines and sources of information in the world, through which one could move or “navigate” as through a virtual space.³

4. Understanding copyright in the digital world

In the digital world, every web page accessible or published in the World Wide Web is to be taken as a literary “copyrightable” work.In cyberspace, one can meet and talk to new people, read, publish, research, hear music, see video, look at art, purchase and sell things, access government documents, send e-mail, download software, and receive technical support. Cyberspace is a living organism, constantly changing, as more information is uploaded, downloaded, as more people join the pioneers of this brave new world. The relationship between the Internet and Copyright law is complicated. The internet is an international system for the transmission and reproduction of material, much of which is protected by Copyright. It therefore presents previously unimaginable possibilities for copyright infringement and many challenges for copyright law.⁴

5. Challenges for Copyright in Cyber Space

About a century ago, Justice Paterson, in University of London v. University of Tutorial Process Ltd., 1916 (2) Ch 601, observed:

“What is worth Copying is prima facie worth protecting.”

This is the genesis of all Intellectual Property Rights (IPRs).These rights refer to the property that is a creation of the mind: inventions, literary and artistic works, symbols, names, images, and designs used in commerce. Among the other IPRs the Trade Marks and Copyright play an important role on the Internet.

The internet poses two basic challenges for copyright: What to administer and how to administer. The first challenge will be met only when a consensus is achieved over the copyright issues in the internet. The IPR administrator’s special challenge is how to balance the rights of different players on the Internet like content providers, service providers, and access providers and so on. This has to be done without jeopardizing the free flow of information and at the same time ensuring that the genuine economic interests of the creators of copyright are not adversely affected.⁵

The following features of the internet pose particular difficulties for copyright law:

i) Information may be easily reproduced and distributed: Once the information is in digital form on a computer connected uploaded downloaded and distributed.

ii) Internet users expect free access to copyright material: Much of copyright material published on the internet has been made available free of charge. This has created resistance among users to pay for the Internet material.

iii) Internet users may act anonymously: It is difficult to identify an industrial Internet user. Users may therefore infringe copyright with little risk of detection, especially if the infringements are relatively small-scale and non-persistent.⁶

Taken together above features of the Internet have raised new kinds of internet cases.

a) Linking and framing

b) Uploading of copyright material

c) Downloading of copyright material.

d) RAM copying

e) Digital formal licences

f) Musical (Audio) Rights

g) Mega tags

h) Meta search

i) Off line web reading software⁷

Linking and Framing:

The websites contain enormous amount of information much of it with varying degree of copyright protection. Almost everything on the web is protected by copyright law. Websites are compositions of materials often consisting of words, graphics, audio and video that are expressed to the consumer as information content.⁸

The owners and websites developers carefully select the content to sell the company’s product or service. The subject matter expressed in the site is an electronic publication of this content. Since designing, producing and maintaining a sophisticated web-site is very expensive. So protecting the content from infringement is extremely important. At present it is easy to violate a copyright owner’s exclusive right to copy the material. Everyone with a computer and an internet connection creates his own web pages and thus becomes a publisher.

Linking comes into two forms hypertext linking and inline linking. ‘Linking’ is the practice of allowing a user, to move from one web site to another by clicking on a “link”.⁹

Hypertext linking:

A hypertext reference link appears on screen as a highlighted citation or phrase that is differentiated from regular text by a special colour or format such as undertaking. When an Internet user activates the link by clicking on the highlighted text, the web browser software retrieves the corresponding document from external site and creates a copy, which is then displayed on screen.¹⁰

In line linking:

An inline link allows a website designer to inline a graphical image from an external site and incorporates it as part of the local on screen display. For e.g. If an external site contains a photograph it can be in lined into local website and shown as part of the current display. In contrast to a hypertext link where there is an immediate termination with the local site after connecting to the external site, the local site remains current when the inline image is displayed. The URL does not change and the user may not realize that the linked image actually comes from somewhere other than linked site.¹¹

Framing:

Framing is another type of dynamic connection that is similar to inline linking. It allows the web-designer to incorporate or pull in an entire external site or portions thereof and surround it with frames of his own creation. The effect as with inline is that the external site appears to be part of the local site and the URL remains unchanged.¹²

One of the first cases over hypertext linking in the U.K. is that of Shetland times Ltd. v. Wills¹³. The claimant owned and published a news paper called the Shetland times (the Times) and made editions of news paper available on the Internet. The second defendant provided a news reporting service under the name of the Shetland News (the News). The first defendant was the managing director of the news. The defendants established a web site and included among the headlines on their front page a number of headlines appearing in issues of the Times. These headlines were verbatim reproductions of the claimant’s headlines; by clicking on one of these headlines the Internet user could gain access to the relative text in the Times. By-passing the front page the Times.

In LFG, LCC v. Zapata Corp¹⁴ the defendant registered domain name zapte.com for carrying on business over the internet. The plaintiff is providing financial service under the service mark Zap futures. The defendant’s web site is having three hyperlinks, which could connect users to other financial service website including that of plaintiff and his competitors. The plaintiff objected this hyperlink on the ground that wrong impression is created in the minds of the public because they may associate him with his competitors.

In Washington Post Co. v. Total News Inc. Total news¹⁵ operated a website providing links to web-sites of many news purveyors including the Washington Post, Time Cable News Network (CNN), Times Mirror, Dow Jones and Reuters. By clicking on the links, the web-sites of these news purveyors were displayed in the frame of Total News. The frame contained the ‘Total News’ logo Total News URL and advertisements managed by Total News. The claimants brought an action against the defendant alleging copyright infringement in which they succeeded.

Uploading of copyright material:

As it is easy and common for copyright material to be transmitted over the Internet, many Internet users assume that the fact that a material is available electronically entitles them to upload it to their own web-sites¹⁶.

Downloading of Copyright material:

Once the unauthorized copyright material has been uploaded and made available, the next possible thing is that Internet users will download it from the internet. There is little doubt that users are liable for downloading such material without the authority of the copyright owners. However copyright owners are reluctant to bring actions against millions of individual infringers. Much of the attention has been paid to the possibility of holding liable those parties who provide the equipment or facilities used for infringing activities.¹⁷

In A and M Record Inc. v. Napster Inc¹⁸ Napster facilitated the transmission of MP3 files among its users. The company distributed its file sharing software for free via its web site through the process called ‘peer to peer’ (P2P) file sharing. Its users could search and share MP3 music files that were catalogued on Napster’s central server. These files could be downloaded directly from user’s hard drivers over the Internet. A and M records and other record companies brought copyright infringement action against Napster in US. District Court and Court decided in favor of plaintiff.

Software piracy: The illegal use or distribution of software is protected under intellectual property laws. Software piracy includes

i) End user piracy- It is illegal to copy or possess software without licensing for each copy. Individual users and companies alike must acquire enough licenses to cover their software installations. Volume licensing applies only to windows Desktop upgrades not to the full windows operating system.

ii) Manufacturer piracy- It is illegal for a computer manufacturer to copy software and pre-install it without permission on more than one computer.

iii) Manufacturer piracy- It is illegal to offer unauthorized copies of software for download over the Internet. If software is available on the internet, make sure the software publisher has authorized this distribution.

iv) Counterfeiting- It is illegal to manufacture unauthorized copies of software and distribute those copies in packaging that reproduces or resembles that of manufacturer. Counterfeit registration cards with unauthorized serial numbers are often included in these packages.

v) Online auction- It is illegal to resell software in violation of the original terms of sale, to resell software marked not for resale.¹⁹

In Microsoft Corporation V. Yogesh Popat:²⁰ The defendants were engaged in the business of assembly and sale of computers since 1996 and were selling computers loaded with pirated versions of Microsoft Software. Microsoft placed a trap order with the defendants through a Microsoft employee and the defendants sold to this employee a computer preloaded with Microsoft’s pirated software. Thereafter, Microsoft filed a suit against the defendants for permanent injunction and also damages. Defendants did not appear at all and the court granted the damages of Rs. 2 crore and injunction.

Ram copying:

In the context of digital technology chips, disks, CD ROMs, optical disks, digital tapes and other storage devices are plainly material objects on which information is fixed. All information passing through a computer will be stored temporarily in the RAM. This is erased whenever the computer is shutdown or rebooted .Such a common copying in the Computer is held as a copyright violation in MAI System Corp.V. Peak Computer Inc.²¹ .This decision will have serious implications. When browsing the Internet, copies of all web pages are made into the RAM. Applying this ratio, a person browsing can be held liable for copyright violation .But this decision was not followed in Religious Technology .v. Netcom²². In this case, the court held that the coping involved in browsing is the equivalent of reading. Still, regarding the copying in RAM the position is unsettled as the MAI System case is still widely quoted.

Digital formal licenses:

Another issue associated with copyright law that is frequently brought into play in the context of Internet is the digital copyright licences. The materials in digital format can be distributed by various methods including on –line distribution, CD-ROM, floppy etc. A blanket grant of a license for the use of copyrighted material in election media would permit the use in all digital formats .Hence, even the licensing culture has to be changed in the digital media.²³

Music Rights:

Earlier it was a prestige to have a presence in the net. Now due to heavy loss, music right owners have to reduce the widespread net-audio use. Internet could be used as a vehicle to distribute both the counterfeit version of recorded material and bootleg copies, which were not intended for commercial distribution. Take for eg. The case of Rio, computer peripheral devices that can download digital audio files and play the audio which has nearly the same quality as CD. Music Bot another programme, automatically searches the web and detects sites, which contain music files. Advances in Internet audio software and technology by companies including Progressive Networks, Liquid Audio, Marcomedia, etc. have subsequently improved the quality of Internet audio. The famous Napster litigation explains the seriousness of this issue. A music album is a result of hardwork. If it can be copied and uploaded in the net within seconds, imagine the loss.²⁴

Mega tags:

Mega tags are key words picked up by the search engine for making a list of web sites, relevant to search request. “passing off” is the common delinquency connected with this. Other person will include words relevant to competitor’s product in their own web site to ensure searchers view their site.²⁵

Meta search:

Meta search software enables an individual to conduct a single key word search of online resources that will access different online search engines.²⁶

Off –line web reading software:

This software searches the net on a regular basis and will download content of those sites for off –line review. Later, the viewer can review the site at his or her convenience, without being connected to the net. Leading producers of off–line web readers are, travelling software www.travsoft.com, free loader www.freeeloader.com etc. Now web pages can be sent by e-mails and even broadcasting of web pages is common. Framing, Caching, Internet, Surfn’ print, posted messages, databases, distribution of software etc., all raise challenges to the traditional copyright regime in the internet.²⁷

6. Liability for the Copyright Infringement

Liability for the Copyright Infringement on the Net can fall upon the infringer himself or upon the Internet Service Provider (ISP). The person who downloads or cathes from the Net copyrighted materials, without the consent of the owner of the copyright, is liable for the copyright infringement. Because of inherent difficulties of enforcing copyright against individual Internet Users worldwide, the copyright owners found the answer to this problem in placing legal liability for the copyright infringement on those who allow and enable Internet Pirates to exist namely, the ISPs.²⁸

ISP can be brought under the provision of S.51 (a) (ii) of the Copyright Act, 1957 for the online copyright infringement. According to this section, if any person “permits for profit” another person to use “any place” to communicate any work to the public, when such communication constitutes infringement, or facilitates such infringement under certain conditions, such person may be held liable for such act.²⁹

ISP allows their servers and telecommunication facilities for storing use material and for transmitting such material. The computer servers and other telecommunication facilities are actually located at their business premises and hence they would verily come under expression “any place’ used in the Statue.³⁰

The provision relating to the ISPs are specifically enumerated in the Information Technology Act, 2000, where an Internet service provider is referred to as the “network service provider”. The Act specifically imposes liability on the ISPs, inter alia, for the copyright infringement. Accordingly, an ISP may be held liable for any third party information or data made available to him by any other person .He can escape from liability, if he proves the offence or contravention was committed without his knowledge or he had exercised all due diligence to prevent such violation of copyright.³¹ However it seems practically difficult for an ISP to filter and police every web pages he carries. Hence there is a fear of such provisions of law often remaining a ‘dead letter’ in the statue books.³²

The real online copyright infringement is not immune from the liability .Section 43 (a) of the IT Act is designed to prevent such persons from infringing acts. According to this section , if any person accesses or secures access to a computer, computer system or computer network or downloads, copies, extracts any data , database or information from it, including information or data held or stored in any other medium, without the permission of the owner or any other person who is in charge of it, he shall be liable to pay damages by way of compensation not exceeding one corer Rupees to the person so affected which is deterrent enough to prevent copyright violation. However while determining the compensation, the amount of gain, and such other things must be taken into consideration.³³

The liability under Copyright Act falls under two categories; Civil and Criminal .As for as the former is concerned, the remedies may be injunction, damages or account for profit. In the case of the latter, normally, imprisonment for a term between six months and three years can be imposed. In addition to this the fine amount from fifty thousand to two lakh rupees shall also be imposed upon the infringer.³⁴

7. Problems which have no Solutions under the IT Act 2000 and Copyright Act 1957.

Challenges before the author of the online copyrighted materials are manifolds. Religious Technology center v. Netcom Online communication Services Inc.³⁵ Internet is everywhere yet it is nowhere. Unlike the bookseller’s shop, now, through Internet, infringement is more a silent and private act. As Internet has reached the PCs and even Mobile Handsets, it has become very difficult to curb such infringing acts.

Issue of jurisdiction:

As internet cannot be confined to any geographical boundary, testing of an act, whether it amounts to infringement and if it does, how to bring him under the clutches of law, i.e., where should he be tried, becomes a tricky debatable question.³⁶

However, this issue of jurisdiction is bravely addressed under the Section 62 of the Indian Copyright Act ,1957 do provides for jurisdiction to any court having a direct jurisdiction over the matter. It further goes on to explain the limits of jurisdiction of the courts. The Information Technology Act 2000 provides for extra-territorial jurisdiction in cyber crime cases. Section 74 provides that where any offence involves a computer or computer resource in India, it can be taken note of under Indian laws.³⁷

Thus, if a person violates the copyright of a person by means of a computer, computer system located in India, he would be liable under the provisions of the Act. Despite of this type of provision, the IT Act does not lay down any concrete framework for dealing with specific copyright violations of the Internet. There are provisions that may be construed to be seeking to address some aspects of copyrights as is obvious from the Section 43 which relates to penalty for damage to computer, system.³⁸Similarly the provisions of the Copyright Act cannot be used to interpret the copyright implications in respect of hyper linking and deep linking. Similarly caching at the browser, proxy or the ISP levels also are issues that are not addressed by the Copyright Act.³⁹

Copyright owners’ concerns about the threats posed by the digital revolution are legitimate. The technological protection systems have tilted the balance in favor of the right holders at the cost of public domain. It created a new and powerful "Access right" deployed to prevent infringing reproduction, reproduction that is permitted under existing copyright exceptions. Technical protection systems can be used to prevent infringing reproduction, reproduction permitted for educational and archival purposes or reproduction necessary for research permitted under fair dealing principles. Concerning Indian position, new provisions are to be added to the present copyright laws and IT law to provide legal protection for infringement of copyright.⁴⁰

8. CONCLUSION:

The advent of the Internet is a serious concern in the field of intellectual property rights. The infringement of copyrights over internet is common now-a-days. The present Indian Legislation on cyber Law does not have sufficient provision to tackle many problems relating to IPR and cyberspace. So there is a need of specific provisions which regulate IP rights in Cyberspace. Non-profit organizations like NASSCOM (National Association of Software and Service Companies) have been actively working as a partner with the Government of India and State Governments in formulating IT policies and legislation in India. Its work is commendable as it launched the country's first 'anti-piracy' hotline and India's first anti-piracy toll-free hotline. State Governments are establishing special police cells for arresting the piracy of copyright works.

9. REFERENCE:

1. See, sec .14 of the Copyright Act, 1957.

2. See, sec .2(ffc) of the Copyright Act, 1957.

3. Lawrence Gomes , “Cyber Crimes”, Criminal Law Journal, Vol.4, Oct-Dec 2001, p.185

4. S.M Bhaskar and R.C. Tripathi. “The Electronic Transaction and Intellectual Property Rights: A need for Digital Time sampling” JILI Vol. 46:2, 2004.p.208.

5. Justice Yatindra Singh, “Cyber Laws”4^th edn., ,(New Delhi: Universal Publication,2012)p.98

6. Muragendra B. T. “Copyright and Trademark in Cyberspace” International Journal of Scientific and Engineering Research , Vol. 3, Issue 6, June-2012 1 ISSN 2229-5518

7. Available at http://etheses.Nottingham.ac.uk/1197/1/initial submission 2 pdf. visited on 15^th April 2011

8. Ibid

9. Ibid

10. Available at http://fenwick.com/docstore/publications/ip/iprights on the internet.pdf , visited on 18^th April 2011

11. Ibid

12. Ibid

13. (1997) F.S.R. 604

14. 78 FS. Supp. 2d.731, 733

15. No. 97 Civil 1190 (PKL).

16. Supra note 3.p.186

17. Ibid

18. 239 F. 3d. 1004 [9^th Cir. 2001]

19. Meena Amar, lectures on Cyber Laws, 1^st edn. (Hyderabad: Asia Law House, 2011), pp.71 -72.

20. CS (OS) no. 103 of 2003

21. 991 F2d 5111

22. 907 F Supp 1361.See also www.crwed. Htm.

23. Kostyu, Jennifer L. “Copyright infringement on the Internet: determining the liability of Internet service providers”(, Catholic University Law Review, 48,1999), p.1237.

24. http://www.ibimapublishing.com/journals/CIBIMA/volume7/v7n8.pdf,visited on 31.7.2014

25. Veer Singh and B.B.Parsoon, “Cyber Crime and the need for National and International legal control Regimes”, PULR, Vol.44 2002, p 37-39.

26. Bains, Manavinder Singh “Software, Sovereignty and the Internet: Circumventing Chaos through Trips”, (The Columbia Science and Technology Law Review, 4, 2003, ) p.2.

27. https://www.advisen.com/downloads/Intellectual_Property.pdf,visited on 31.7.2014

28. Raman Mittal “On line Copyright Infringement Libility of ISPs”Vol.46:2, (Journal of Indian Law Institutes :2004). P.288.

29. Nandan Kamath, “Law Relating to Computers, Internet and E-Commerce-A Guide to Cyber Laws” (Delhi: Universal Law Publishing Co .Ltd. 2000) , p.152.

30. Ibid.

31. See sec.79(1), Information Technology Act, 2000.

32. Ibid.

33. Nandan Kamath, Super note. 20, p.153

34. See sec. 53-A, Copyright Act., 1957.

35. 907,F Supp.1361 (1995)

36. Praveen Dalal, “The Long arm Jurisdiction of Courts regarding Copy Right Law in India”:Journal of Intellectual Property Rights : Vol.9,Nov.2004, p.561.

37. Ian J.Lloyd, “Information Technology Law “ 3^rd Edn,(Butterworth’s Landon )p.39

38. Bushan Tilak Kaul, Copyright Protection : Some Hassels and Hurdles” Journal of Indian Law Institute, Vol.46:2, (2004).p.239

39. Cryptography Technology and Policy Directions in the context of NII, , Gulshan Rai, R.K. Dubash and A.K. Chakravarti, Electronics- Information and Planning, Nov., 1997. Available at http://www.doe.gov.in/~doe/cyber.htm

40. mr a.k. chakravarti, protecting proprietary and Security rights in cyberspace: initiatives in india.available at http://www.doe.gov.in/~doe/cyber.htm.visited on 4/6/2014

Received on 18.12.2014 Modified on 08.02.2015

Research J. Science and Tech. 7(1): Jan.-Mar. 2015; Page 23-28

DOI: 10.5958/2349-2988.2015.00005.4