1. INTRODUCTION:

The protection of digital content under the Copyright Act against intended and unintended infringements and violations is a burning issue today. By introducing uniformity of applications to state laws internationally, the international organizations have got a great role in curbing infringement of copyright in cyberspace; we need some controlling and unifying agreements internationally. The state laws may not be always reciprocal to each other and they are formed to sub serve the needs of a particular state.

So, there may arise problems related to the time of the crime, jurisdiction, etc., and to solve these problems, there is the need of a harmonizing international agency and the conventions introduced by it. Now, we have the Berne Convention, the WIPO Copyright Convention, the TRIPs Agreement, etc., all of which deal with international intellectual property rights.

2. 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.¹

3. 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.²

Besides this news stories, novels, screenplay, graphics, pictures, Usenet massages, the unique underlying design of web page and its content including links, original texts, graphics, audio, video, html, urml, and unique markup language sequence, list of websites compiled by an individual or organization, even e-mails and all other unique elements that make up the original nature of the material are copyrightable on the internet. Therefore the reality is everything on the internet is protected by copyright law.³

4. INFRINGEMENT OF COPYRIGHTS BY VARIOUS INTERNET ACTIVITIES:

Internet activities like caching, browsing, mirroring, scanning, uploading or file swapping may result in infringements of the exclusive statutory rights of a copyright owner through following ways:⁴

a) Transmission of Copyright work from one computer system or network to another, involving temporary storage (RAM) of that information.

b) An unauthorized storage of such Copyright work resulting in violation of the copyright owner’s exclusive right to make copies, i.e. to reproduce the copyrighted work.

c) Distributing the copyright work to public thus violating the copyright owner’s exclusive right of distribution.

d) An appearance of a copyright image in a web browser thus infringing the copyright owner’s right of public display.

e) Preparing derivative works thus infringing copyright owner’s exclusive right to prepare derivative works.

Above mentioned Internet activities infringe the following exclusive statutory rights of a copyright owner:⁵

a) Right to reproduce the copyright work.

b) Right to fix the information in tangible form.

c) Right to sell, rent, lease, or otherwise distribute copies of the copyright work to the public.

d) Right to perform and display publicly the copyright work.

e) Right to prepare derivative works based on the copyright work.

It is significant to note that both under international and national laws efforts are made to protect the copyright in cyber space and to prevent the infringement of copyright .e.g. at international level WIPO Copyright Treaty, (WCT) 1996 and WIPO Performances and Phonogram Treaty (WPPT), 1996 take care of this. Further ,USA and European countries have also taken lead in this direction by enacting the Digital Millennium Copyright Act, 1998 (US) , The Electronic Communication Act,2000 (UK) and various European Directives.⁶

5. PROTECTION OF COPYRIGHT IN CYBER SPACE: THE INTERNATIONAL FRAMEWORK:

The closer analysis of the views of both the copyright owners and the proponents of freedom in cyberspace clearly reveals demands for regulation of the use of cyberspace mainly favoring interest of the respective parties. The World Intellectual Property Organization (WIPO) copyright regime is one of the earliest initiatives aiming to balance the interests by addressing the copyright issues in cyberspace. The Copyright Treaty 1996 and Performances and Phonograms Treaty 1996 are the two major international legal instruments relating to cyberspace created under the auspices of WIPO. There is also an ongoing work of a Standing Committee on Copyrights and Related Rights in the field of protection of audio visual performers and broadcasting organizations.⁷

5.1. World Intellectual Property Organization’s Initiatives: WCT and WPPT

WIPO is an organization of the United Nations (UN). Before its establishment, there were many organization established under certain individual organs like the Assembly of Paris Union, The Executive Committee and the international Bureau of Bern which were later united in an organization called 'Bureau Internationaux Reunis Pour La Protection de La Propriete Intellectuelle' known as 'BIRPI'.⁸

WIPO’s activities are of four kinds:

a) Registration,

b) Promotion of inters- governmental cooperation in the administration of intellectual property rights,

c) Specialized program activities and latterly,

d) Dispute resolution facilities.

In December, 1996, WIPO held a diplomatic conference in Geneva that led to the adoption n of two treaties:

a) WIPO Copyright Treaty (WCT) and

b) WIPO Performance and Phonograms Treaty (WPPT).⁹

WIPO has taken the issue on its agenda by introducing two obligation on member nations. The obligations concerning technological measures demand that “each contracting state shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this treaty or the Berne Convention and that restrict acts, in respect of their works which are not authorized by the authors concerned or permitted by law”.

5.2. The WIPO Copyright Treaty, 1996

WCT is a special agreement within the meaning of article 20 of the Berne Convention for the protection of Literary and Artistic Works.

The WIPO Copy Right Treaty 1996 at the very outset, in the preamble, highlights certain specific needs in order to provide adequate solutions to the related copyright questions raised by new technological developments. It specifically acknowledges the profound impact of the development and convergence of information and communication technologies (ICT) on the creation and use of literary and artistic works. It underlines the need to introduce new international rules and to clarify the interpretation of certain existing rules related to copyrights. The preamble recognizes the specific need to maintain a balance between the rights of authors and the larger public interest.¹⁰

Under this treaty, the computer software and programmes in any mode or forms of expression are protected as literary works. Copyright forms the foundation on internet, electronic commerce and the global information infrastructure. Strong copyright protection was also introduced through this treaty. An effective intellectual property protection will provide necessary incentives to continue to build and improve the information infrastructure .At the same time, consumers will be provide the better services. This treaty protects worldwide authors. The internet piracy is the international piracy due to the international nature of the internet. The copies are produced and sent within seconds to any of the countries. On this problem, this treaty creates a common international regime to help curb piracy. Moreover, this new global technology necessitates global solutions.¹¹

Rights:

Interactive communication of a work must be covered by exclusive rights .

Art.8.Authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works by wire or wireless means…..

Art.11.Contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this treaty

5.3. WIPO Performance and Phonograms Treaty, 1996

WIPO Performances and Phonograms Treaty, 1996 (WIPO PPT) is a relatively comprehensive regime in comparison with the WIPO Copyright Treaty. Limitations of space do not permit a detailed analysis of the WIPO PPT. However, some major highlights of the treaty along with the relevant provision for digital environment could be discussed. The WIPO PPT, interestingly, imposes a ‘National Treatment’ obligation on the signatory countries to the guarantee exclusive rights specifically recognized under the treaty, including the right to equitable remuneration. The treaty deals with a range of rights of performers including moral and economic rights and the related rights of reproduction, distribution, rental etc. The treaty also addresses a range of rights related to producers of phonograms.¹²

Its main object was to meet the new challenges of audio visual technology, the Internet in particular. Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorized by the performers or the producers of phonograms concerned or permitted by law. (Art.18)¹³.

Rights:

Interactive communication of a performance or a phonogram must be covered by exclusive rights.

¡ Art.10.Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or wireless means ,

¡ Art.14. Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means,

¡ Art.18. Contracting parties shall provide adequate legal protection and effective legal remedies against against circumvention of effective technological measures that are used by authors or other right owners.

¡ The rights and exceptions described in the treaty apply equally to the digital world and storing any performance or a phonogram in electronic format will amount to the reproduction of the protected work.

Fair use:

WCT and WPPT have provided for exceptions to the rights granted to authors of literary and artistic works (Art.10).And producers of phonograms (art.16) respectively.

5.4. The TRIPS Agreement

The General Agreement on Tariffs and Trade (“GATT”) has also addressed copyright issues, in parallel to WIPO. The goal of the GATT is to “promote the reduction of tariff barriers to the international movement of goods.” The GATT has been updated and revised regularly in the course of multinational discussions (“Rounds”). As copyright was becoming increasingly important in shaping international trade with the advent of the information society, the 1994 Uruguay Round of GATT produced TRIPS – the Agreement on Trade-Related Aspects of Intellectual Property Rights. The same Round also instituted the World Trade Organization (WTO). The TRIPS Agreement adopts portions of the Bern, Rome and Paris Conventions in enunciating norms for intellectual property laws. ¹⁴

As far the legal recognition of copyright material in electronic medium is concerned, and if read in the light of what is proposed by Berne Convention and reiterated by TRIPs, once a material is published anywhere in a member country of the convention , it becomes a copyrighted material and no separate registration is required. Therefore, any information which is transmitted on Internet is a subject matter of copyright as it is available in public domain. In addition many pieces of information transferred and transmitted on Internet may already be a copyrighted one. Thus, the material which appears to be in electronic networking is protected by law.

Article 9.1 of TRIPS Agreement provides that, “Members shall comply with Articles 1 through 21 of the Bern Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived there from.” So it is clear that the approach taken in the copyright provisions of the TRIPS Agreement is to adopt the regime of copyright protection provided in the Bern Convention.¹⁵

Any information which is transmitted on Internet is a subject matter of copyright as it is available in public domain.

Article 10.1 provides that, “Computer programs, whether in source or object code, shall be protected as literary works under the Bern Convention.”

Article 10.2 further provides that, “ Compilation of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such.”

Further, article 11 introduces as minimum standard the recognition of “rental rights” in respect of the “commercial” rental of “at least computer programmes and cinematographic works”.¹⁶

5.5. Implementation of the Internet treaties in the U.S.A. – the Digital Millennium Copyright Act (DMCA):

The Digital Millennium Copyright Act (DMCA) was adopted in October 1998 to implement the United States’ treaty obligations under the WCT and the WPPT and to “move the nation’s copyright law into the digital age.”In a nutshell, the DMCA.¹⁷

a) Makes it a crime to circumvent anti-piracy measures built into copyrighted material, while permitting the cracking of copyright protection devices to conduct encryption research, assess product interoperability, and test computer security systems, and providing exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances;

b) Outlaws the manufacture, sale, or distribution of code cracking devices used to illegally copy software;

c) Protects Internet service providers from copyright infringement liability for simply transmitting information, and limits the liability of nonprofit institutions of higher education -- when they serve as online service providers and under certain circumstances – for copyright infringement by faculty members or graduate students, while requiring service providers to remove material from their systems that appears to constitute copyright infringement; and

d) Requires that “web casters” pay licensing fees to record companies. However, the DMCA was an update of the general law governing copyright, viz, the Copyright Act, 1976, which limited the potential liability of ISPs regarding certain activities and subject to their complying with certain conditions but did not exempt ISPs from liability. In addition to limiting the liability of ISPs can be held liable for infringement of copyright by their subscribers.

The DCMA allows ISPs to avoid both copyright liability and liability to subscribers by adhering to certain guidelines set out therein which are known as ‘safe harbours.’ Through these safe harbor provisions, DCMA limits ISPs liability to four categories, viz, firstly, transitory digital network communications, secondly, system caching, thirdly, information residing on system at the direction of subscribers; and fourthly, information location tools.¹⁸

6. LEGISLATIVE ACTIVITY IN THE DIGITAL COPYRIGHT AREA HAS TENDED TO ADDRESS THREE ISSUES:¹⁹

a) The implementation of the WIPO Treaties of 1996 dealing with the challenges of copyright and digitization generally-does existing copyright law adequately protect authors and others involved in exploiting copy right works over the Internet?

b) The clarification of the liability of ISP and other intermediaries; and

c) The legal protection of technical steps to prevent copying, ie ensuring that there are adequate of civil remedies (e.g. damage and /or an injunction) and possibly criminal remedies to deter those who would otherwise hack copyright protection systems, distribute devices which facilitate illegal copying and so on.

In Europe two pieces of legislation are particularly relevant:

a) The E-Commerce Directive, dealing with, among other things, the liability of intermediaries; and

b) The Digital Copyright Directive, which implements the WIPO Treaties and deals with certain other matters, including copy-protection technologies, in particular following on from the 1995 EU Copyright Green Paper.

The US was ahead of Europe in this area with the enactment in 1998 of the Digital Millennium Copyright Act (DMCA) , which deals with the implementation of the WIPO Treaties and other matters, including the liability of intermediaries.²⁰

7. PROTECTION IN INDIA

The Internet system is spreading fast in India. There are many issues related to internet. But one of the biggest issues concerning Internet is protection of intellectual property- works of the mind. As per Section14 and 63 of Indian Copyright Act, 1957 literary works, pictures, sound recordings and other creative works are protected from being copied without the permission of the copyright holder. It is yet unclear how copyright law governs or will govern these materials as they appear on the Internet.

The Copyright Act, 1957 does not deal with the liability of ISPs at all. However, the liability of ISPs finds mention in Section 79 of the Information Technology Act, 2000 as follows: ‘Network service providers not to be liable in certain cases.

For the removal of doubts, it is hereby declared that no person providing any service as network service provider shall be liable under this Act, rules or regulations made there under for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

Explanation-For the purposes of this Section,-

(a) ‘Network service provider’ means an intermediary;

(b) ‘Third party information’ means any information dealt with by a network service provider in his capacity as an intermediary.’

Section 79 of the IT Act exempts ISPs from liability for third party information or data made available by him if the ISP had no knowledge of the offence committed or if the ISP had exercised ‘all due diligence’ to prevent any infringement.²¹

7.1. Fair use and Abuse

Copyright law tolerates some of the acts which otherwise amount to “abuse” of copyright of the authors. This system is provided to enable the reproduction /use of the copyrighted works for certain public purposes, for the private study and research and promotion of education. A lengthy list has been provided under S.52 of the Copyright (Amendment), Act 1999,which enumerates the making of copies or adaptation of the computer programme from a personally –legally obtained copy for the non –commercial personal use does not result in the infringement.²²

Copyright in the Internet has been provoking the legal fraternity to come out with the sophisticated legal measures to tackle the problems posed by the internet. In India, the copyright Act, 1957 and the Information Technology Act, 2000 deals with the problem of copyright in the Internet. However, there arises a question, whether the IT Law protects the copyrighted work on the Internet? The present copyright law also does not address this issue. In US, there is Digital Millennium Copyright Act, 1998 that identifies the piracy of copyright on the Internet and compensates the economic loss of the owner of such work. In view of this, if the piracy has to be controlled effectively through the copyright law, so as to enable enforcing agency to prevent the infringement of copyright on the internet. The guidelines under the WIPO Internet Treaties and WIPO Copyright Treaty 1996 may be utilized as a source for strengthen the present copy right law.²³

8. CONCLUSION:

Law and technology, needs to combined for effective solutions for many of the cyber space challenges including those related to copyrights. The borderless nature of Internet, calls for a more encouraging relationship in other jurisdictions and close cooperation with the international organizations. The legal system of each nation reacts differently to these violations. At the international level various treaties and reciprocal arrangements have been adopted to deal with these violations of copyright. These will definitely help in providing strong and effective copyright protection to their owners.

9. REFERENCES:

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

2. 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.

3. http://mason.gmu.edu/-montesin/er-internet.htm.visited on 21/4//2012.visited on 2/5/2012.

4. Meena Amar , ‘Lectures on cyber Laws’, 1st ed. [Hyderabad: Asia Law House, 2011].p.71

5. Gupta and Agarwal, ‘Cyber laws’, 1st ed. [Allahabad: Premier Publishing Co., 2008].p.200

6. http://nopr.niscair.res.in/bitstream/123456789/4904/1/JIPR%208%284%29%20269-275.pdf,(Visited on 19.3.20160

7. Ibid.

8. http://nopr.niscair.res.in/bitstream/123456789/4905/1/JIPR%208%284%29%20276-301.pdf, (Visited on 20.3.2016)

9. Nandan Kamath, “Computers Internet and E-Commerce” , 5th edt ,(New Delhi : Universal Law Publishing Co, 2012),p.162

10. Ibid.

11. Akhil Prasad and Aditi Agarwala, “ Copyright Law Desk Book”, (Delhi: Universal Law Publishing Co.Pvt.Ltd, 2009) p.150.

12. http://nopr.niscair.res.in/bitstream/123456789/21540/1/JIPR%2018%285%29%20465-474.pdf, (Visited on 20.3.2013)

13. Vakul Sharma, ‘Information Technology Law and Practice”, 3rd Ed, (Delhi: Universal Law Publishing Co. Pvt. Ltd, 2014),p491.

14. Dr. Jyoti Rattan, “Cyber Laws and Information Technology”, 4th ed, (New Delhi: Bharat Law House.Ltd,2014)p411

15. Ibid.

16. Ibid.

17. Ibid. at p.86

18. ibid.

19. http://www.internetpolicy.net/practices/20041200copyright.pdf (accessed on 10/10/2008)

20. http://nopr.niscair.res.in/bitstream/123456789/5215/1/JIPR%2014%284%29%20321-329.pdf,(Visited on 20.3.2016)

21. Shailaja Menon, “Protection of Intellectual Property in Cyber Space” (Delhi:Authorspress,2003) p.103.

22. Ibid

23. http://nopr.niscair.res.in/bitstream/123456789/4890/1/JIPR%209%286%29%20557-567.pdf, (Visited on 19.3.2016)

24. Nandan Kamath ,Law Relating To Computers, Internet @ E- Commerce-A Guide to Cyber Laws”[Delhi: Universal Law Publishing Co.Ltd,2000].p.152

25. Ibid

Received on 04.04.2016 Modified on 23.04.2016

Research J. Science and Tech. 2016; 8(2):107-112

DOI: 10.5958/2349-2988.2016.00014.0