NORTHEASTERN UNIVERSITY

Copyright Protection in Cyberspace – A Comparative Study of the USA and India

(FROM LEGAL PERSPECTIVE)

RESEARCH PAPER SUBMITTED TO

PROF. KYLE K. COURTNEY

BY

DEVANSHI GOYAL

NORTHEASTERN UNIVERSITY

MSIA PROGRAM

JULY 2016

Contents

1. Introduction 3

2. Problem Definition 4

3. Copyrights and Copyright Infringement – Term Definition……..........…….4

3.1Copyrights on the Internet………………....………………………….5

3.2Viacom Int’l Inc. v. YouTube – Case Analysis………………............5

4. The Comparative Analysis of Indian and U.S. Copyright Laws…….............7

4.1Jurisdictional Issues……………...…………………......…………….7

4.2Compliance with WIPO’s Internet Treaties – WCT and WPPT.….…10

4.3Fair Use Doctrine……...……………………….………………….…12

5. Remedies…………………….………………………….………………….15

6. Conclusion………………………….………………………….…………...16

7. References...……...……………….………………………….…………….18

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1. Introduction

“The information explosion about which so much has been said and written is to a great extent an

explosion of misinformation.”-

Murry Gell Hann1

The Internet has advanced from obscurity to ubiquity virtually overnight. Unconstrained and fast

access to enormous quantity of information has increased the use of World Wide Web

tremendously around the globe. Unfortunately, “friction-free markets and friction-free piracy run

in tandem.”2 According to Council of State Governments, the U.S. economy faces a loss of about

$58 billion each year due to copyright infringement.3 A recent study revealed that 60% of the

total software piracy takes place in India while the number is much less in US, about 20%, thus a

huge disparity.

Cases of copyright infringement over the Internet are difficult to deal with mainly because of

global presence of the Internet and conflict among international copyright laws. Imagine an

author filing a lawsuit in his country of residence for an infringement act of his work that took

place in an altogether different country. This makes it difficult to decide which country’s laws

should be followed.

The primary aim of this paper is to understand the laws of two countries- USA and India in the

light of copyright protection of their works in cyberspace. The second and third sections of the

paper will discuss the problem of copyright infringement along with legal term definitions of

1Davenport, Thomas H., and Laurence Prusak. Information ecology: Mastering the information and knowledge environment. Oxford University Press on Demand, 1997. [Accessed June 25, 2016].2 Skelton, Timothy L. "Internet Copyright Infringement and Service Providers: The Case for a Negotiated Rulemaking Alternative." San Diego Law Review35.1 (1998): 219-342. [Accessed June 25, 2016].3

Intellectual Property Theft: Get Real. [Online; Accessed June 25, 2016]. URL: {http://www.ncpc.org/topics/intellectual-property-theft/facts-and-figures-1}.

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copyrights and copyright infringement. A prominent cases study of Viacom v. YouTube is also

discussed in this section. The fourth section of the paper will draw a comparative analysis of

copyright laws in India and USA with the help of relevant case laws.

2. Problem Definition

In this modern time of digitalization, unrestricted and lightning fast access to information has led

to a massive increase in rates of copyright infringement in cyberspace over the past decade. “The

Internet has often been referred to as one large copy machine that can make and distribute an

unlimited number of copies of content worldwide.”4 I believe that one of the main reasons of

increasing copyright infringement is inefficient enforcement of copyright laws in different

countries. Copyright laws must be amended to adjust with changing circumstances presented by

the Internet. So, to conform this point, a comparative analysis of copyright laws in 2 countries:

the USA and India is made in this paper. USA has well-written copyright laws whereas the same

is in developing stage in India.

3. Copyrights and Copyright Infringement - Term definition

One might ask what is a copyright and what type of protection it provides to a creator’s work?

According to §102 of United States Copyright Act, “a copyright protects a literary, musical,

dramatic, choreographic, pictorial or graphic, audiovisual, or architectural work, or a sound

recording, from being reproduced without the permission of the copyright owner.”5 Copyright

law in U.S. is governed by 17 U.S.C. §§ 101-1101 – The Copyright Act.

Copyright infringement in cyberspace constitutes deep linking [ process of linking a website with

another website or material], framing [using a creator’s original work in one’s text and

surrounding it with frames of one’s own creation], software piracy, piracy of sound, music audios 4 Pedro Romeoaldo, Copyright Infringement, laws and Border on the Internet. [Online; Accessed June 26, 2016]. URL: https://web.fe.up.pt/~mgi97018/is/copyright.html5 Betsy Rosenblatt, Copyright Basics by Betsy Rosenblatt, Harvard Law School. [Online; Accessed June 26, 2016]. URL: http://cyber.law.harvard.edu/property/library/copyprimer.html

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and videos, and other multimedia.6 Bootleg copies of video and audio recordings, images, literary

material, and other multimedia is freely available on Internet.7 The software industry has been hit

hard by increasing numbers of software piracy. In a survey, it was estimated that each computer

consists of at least 1-2 pirated software and among the list of pirated software, Microsoft Office

and Adobe tops the list.

3.1 Copyrights on the Internet

There are number of factors that poses threat to enforce copyright rights on the Internet

such as no loss of quality in reproduction, no meaningful cost of reproduction or

distribution, ability to act anonymously, uneducated users who do not understand the

functioning of legal framework.8 Apart from these, the copyright laws governing the

copyrights on the Internet lack some super national authority which can regulate and

timely amend these laws to bring them in pace with the changing Internet trend. Also,

jurisdictional issues and difficulty in tracing down the culprits is difficult in cases of

cybercrime due to an enormous number of the Internet users and equivalent IP addresses.9

3.2 Viacom Int’l Inc. v. YouTube – Case Analysis

Viacom v. YouTube is a landmark case in the history of copyright infringement in cyberspace

and it is centered around Digital Millennium Copyright Act (DMCA). The subsequent discussion

of the case will give an insight into an important clause of DMCA – the “Safe Harbor” provision

which is a way for website producers to escape copyright lawsuits.

Safe Harbor Protections

6 Karnika Seth, Protecting copyright in the cyberspace. [Online; Accessed June 26, 2016]. URL:

http://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html7 Skelton, Timothy L. "Internet Copyright Infringement and Service Providers: The Case for a Negotiated Rulemaking Alternative." San Diego Law Review35.1 (1998): 219-342. [Accessed June 26, 2016].8 Schlachter, Eric. "The intellectual property renaissance in cyberspace: why copyright law could be unimportant on the Internet." Berkeley Technology Law Journal (1997): 15-51. [Accessed June 25, 2016].9 Hrishita Mukherjee, Copyright Protection in Cyberspace-A Comparative Study of USA and India. [Online; Accessed June 26, 2016]. URL: https://www.ijsr.net/archive/v5i5/NOV163712.pdf

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The Safe Harbor Protection provision of DMCA provide legal protection to qualifying

online service providers like YouTube, eBay, Flickr, Scribd, Amazon, etc. from claims of

copyright infringement for “identifiably infringing” content posted by the OSP’s users, as

long as the OSP, upon becoming aware of the infringing activity, acts swiftly in removing

the infringing material within one business day. A service provider is entitled to safe

harbor protection depending upon the fact that whether it was aware, specifically or

generally, of infringing activity. One, who upon being notified of infringing activity does

not act expeditiously, is not qualified for safe harbor protection.10

Case Summary and analysis

In March 2007, Viacom International Inc. sued YouTube, Google [YouTube is now owned by

Google after Google purchased it for $1.65 billion in 2006] for $1 billion for direct and secondary

copyright infringement on the grounds of public performance, display, and reproduction of about

79,000 clips being show on YouTube that were copyrighted by Viacom.11 In its defense, Google

argued that YouTube is protected from liability under DMCA’s safe harbor protection because

the site quickly took down the infringing material as soon as it was notified by Viacom about the

activity. The 2nd U.S. Circuit Court of Appeals in New York affirmed that YouTube is protected

under “safe harbor” provision of DMCA. Thus, Viacom lost the battle and all its arguments were

dismissed.12

This decision of the court confirms that OSP’s can still rely on safe harbor provision of the

DMCA to limit their liability in copyright infringement cases, even if these providers have

general awareness of prevalent infringing activities on their websites. The safe harbor provision

10 Rachman, Melton, Gilbert Case Study: Viacom V. YouTube. [Online; Accessed June 26, 2016]. URL: http://www.dglaw.com/images_user/newsalerts/Rachman.Melton_Law360.Case.Study.Viacom.v.YouTube.April.19.2012.pdf11 Viacom Int’l, Inc. v. YouTube. [Online; Accessed June 26, 2016]. URL: http://www.casebriefs.com/blog/law/intellectual-property-law/intellectual-property-keyed-to-merges/copyright-law/viacom-intl-inc-v-youtube/12 Viacom v. YouTube. [Online; Accessed June 26, 2016]. URL: https://www.eff.org/cases/viacom-v-youtube

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also states it is not the duty of website owners to police their sites for infringing content. Rather,

content-owners bear the burden and expense of policing the websites for any offending material

and bringing it to the attention of website owners through very specific notices. The outcome of

this case bring into light the need that online service providers should act proactively in order to

comply with the DMCA rather than merely taking down the notified content.13

“This decision seems to affirm that the DMCA safe harbor provisions provide space for

innovation and creativity while preserving the rights of copyright owners.”14

4. The Comparative Analysis of Indian and U.S. Copyright Laws

United States has always been at the forefront of technology and innovation. As the information

technology grew, so did the cases of intellectual property infringement in cyberspace. Therefore,

US laws contained provisions to deal with such issues from an early time (The Copyright Act of

1976) and in today’s date, the US copyright legislation is a well-developed legislation. On the

other hand, Indian Copyright Act 1957 (the first-ever post-independence copyright legislation in

India) did not emphasize much on copyright infringement laws in cyberspace. The Act was

amended six times since 1957 and the most recent amendment was in the year 2012, through the

Copyright Amendment Act 2012.15 The copyright laws of both USA and India has been compared

on various aspects as discussed below:

4.1 Jurisdictional Issues

The issue of jurisdiction in cases of copyright infringement in cyberspace has been a topic of

global debate due to unique nature of promulgation of information via the Internet. Different

13 Rachman, Melton, Gilbert, Case Study: Viacom V. YouTube. [Online; Accessed June 27, 2016]. URL: http://www.dglaw.com/images_user/newsalerts/Rachman.Melton_Law360.Case.Study.Viacom.v.YouTube.April.19.2012.pdf14 Ibid.15 INDIAN COPYRIGHT ACT 1957. [Online; Accessed June 27, 2016]. URL: http://www.ircc.iitb.ac.in/webnew/Indian%20Copyright%20Act%201957.html

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countries have dealt with it in their own ways.16 The following will discuss how the USA and

India have dealt with jurisdiction issue:

USA

As discussed above, US saw rise of Internet technology much earlier than other countries, so

US courts had to deal with copyright infringement cases from very beginning. Since 1990s,

the US Courts have developed two tests – the Zippo “sliding scale” test and “effects test”.

The first test – the “sliding scale” test was derived from the case of Zippo Manufacturing Co

v Zippo Dot Com Inc.17 This test based the court’s jurisdiction on the basis of level of

“interactivity” of the website. It divided the website into three levels of interactivity – active,

passive and interactive. In Court’s opinion, a passive website is the one which solely makes

the information available to the user but does not permit any interaction. Such a website is

insufficient for personal jurisdiction, but an interactive website encompasses a two-way

online communication and is highly active in its marketing efforts. Such a website is

sufficient to establish personal jurisdiction.18 Zippo “sliding scale” test is criticized for not

providing a guideline to measure the interactivity of a website in order to constitute

jurisdiction- a continuous daily record is required or a regular interaction is sufficient.19 The

second test, the “effects test” was developed from the case of Calder v Jones.20 The “effects

test” is utilized to determine if the state has jurisdictional rights on the party by assessing if

16 Muralidhar, S. "Jurisdictional Issues in Cyberspace." Indian JL & Tech. 6 (2010): 1. [Accessed June 28, 2016].17 Rosenblatt, Zippo Mfr. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). [Online; Accessed June 28, 2016]. URL: http://cyber.law.harvard.edu/metaschool/fisher/domain/dncases/zippo.htm.18 Active vs. Passive Websites: How Businesses Can Navigate This Potentially Costly Distinction. [Online; Accessed June 28, 2016]. URL: https://www.reedsmith.com/active-vs-passive-websites-how-businesses-can-navigate-this-potentially-costly-distinction-04-06-2011/19 Copyright Protection in Cyberspace-A Comparative Study of USA and India. [Online; Accessed June 26, 2016]. URL: https://www.ijsr.net/archive/v5i5/NOV163712.pdf20

Calder v. Jones 465 U.S. 783 (1984). [Online; Accessed June 26, 2016]. URL: https://supreme.justia.com/cases/federal/us/465/783/

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their actions have had an effect in that state. It has been observed that first test has been more

useful that the second one in determining jurisdiction in recent infringement cases.

A similar view was given in a recent case of United States v Kim DotCom where the

jurisdiction was decided under DMCA 1998. In the Court’s opinion, ‘corporations that are

foreign in their registration and address but conduct a substantial amount of business in the

United States will not be able to dodge the jurisdiction based on formalities.’21 However,

another recent case of Inc v Yandex saw a bit more flexibility exercised by the Court. In this

case, the amount of infringement that occurred in US amounted to just 6 percent but still, the

Dutch search engine was held to be subjected to the California Court.22

INDIA

According to Section 62(2) of the Indian Copyright Act 1957, anyone, be it citizen or

foreigner, can be subjected to, and punished by judicial laws upon found guilty of infringing

copyrighted material of an Indian resident via the means of Internet. The provisions of

Information Technology Act, 2000 can be combined with Copyright Act of 1957 to handle

the cases of online copyright infringement. In order to provide complete protection of

copyrighted works in the domain of information technology, the Indian law constitutes the

Information Technology Act. 2000. Some of the relevant provisions of this act are

enumerated below:23

21 Ferrar, Garvais Meeting of the Minds—Liability of Foreign Companies under the Digital Millennium Copyright Act.). [Online; Accessed June 29, 2016]. URL: http://www.americanbar.org/publications/landslide/2013-14/january-february/liability_foreign_companies_under_digital_millennium_copyright_act.html 22

Perfect 10, Inc. v. Yandex N.V., No. 3:2012cv01521 - Document 191 (N.D. Cal. 2013). [Online; Accessed June 29, 2016]. URL: http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv01521/253123/191/23 Dalal, Praveen. "The Long Arm Jurisdiction of Courts regarding Copy Right Law in India"." Journal of Intellectual Property Rights 9 (2004): 561. [Accessed June 29, 2016].

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a) Section 1(2) read with Section 75 of the Act provides for extra territorial protection

of its provisions. Hence, a person is liable if he violates the copyright of an entity by

means of a computer, or computer network located in India.

b) Unauthorized access to a computer system, database or network makes the infringer

liable to a compensation not exceeding 1 crore rupees.

c) Under this Act, an Internet Service Provider (ISP) shall not be liable of an

infringement act if it proves that the offence was committed without his knowledge

or it has exercised all due diligence to prevent commission of such an offence.

d) The provisions of Section 1(2) read with Section 75 authorize the courts with a ‘long

arm jurisdiction’ wherein the court shall exercise its power over international entity

whose actions caused damage to local resident. It is, however, quite tedious and

difficult to implement these provisions.

A landmark case dealt under long arm jurisdiction is Banyan Tree Holding Ltd. V. A.

Murali Krishna Reddy & ANR where the plaintiff was a resident of Singapore while

defendant was a resident of Hyderabad.24 Also, the reason behind the case of Casio

India Ltd. V. Ashita Tele Systems Pvt. Ltd. Was based on the fact that owning to the

ubiquity and universal presence of World Wide Web, all the clauses related to this

case possess global jurisdiction. The court also relied upon the famous Zippo ‘sliding

scale’ test and some other decisions made in US cases to deal with the matter.25

4.2 Compliance with WIPO’s Internet Treaties – WCT and WPPT

24 Banyan Tree Holding Ltd. V. A. Murali Krishna Reddy & ANR. [Online; Accessed June 29, 2016]. URL: http://www.aswal.com/pdfs/cases/case-48.pdf25 M. Sarin, 106 (2003) DLT 554, 2003 (70) DRJ 742, 2003 (27) PTC 265 Del, 2003 (3) RAJ 506. [Online; Accessed June 29, 2016]. URL: https://indiankanoon.org/doc/418389/

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Dissemination of information via Internet raises many new questions concerning

copyright. To address copyright infringement cases in cyberspace, many new regimes

were developed. The World Intellectual Property Organization (WIPO) is one them.

This organization has administered two important treaties – WIPO Copyright Treaty

(WCT) and WIPO Performances and Phonogram Treaty (WPPT), which are aimed at

preventing unauthorized access to and use of creative works published over the

Internet. It is required that a country’s copyright laws are in compliance with these

treaties to decide jurisdiction for infringement cases over the Internet involving

domestic as well as international parties. “Most importantly, the treaties ensure that the

owners of those rights will continue to be adequately and effectively protected when their

works are disseminated through new technologies and communications systems such as the

Internet. The treaties thus clarify that existing rights continue to apply in the digital

environment.”26

USA

Digital Millennium Copyright Act (DMCA) was signed into the existing Copyright Act of

1976 in 1998 to bring the exiting copyright law in consonance with the two Internet treaties

of WIPO – namely, WCT and WPPT. DMCA amended various sections of original

Copyright Act (Section 104 and section 101) in order to “extend protection of U.S. law to

those works require to be protected under the WCT and the WPPT”. Majority of these

amendments are included in Section 102(b) of DMCA. The technological measures included

in DMCA are described in section 1201 and are divided into two categories – measures that

prevent unauthorized access to a copyrighted work and measures that prevent unauthorized

copying of a copyrighted work.27 This provision prohibits circumventing of first category of

26 WIPO Internet Treaties. [Online; Accessed June 29, 2016]. URL: http://www.wipo.int/copyright/en/activities/internet_treaties.html27 3rd annual pace law exposition on intellectual property, sports and entertainment law: a closer look at the evolution of patents and the future of digital media. [Online; Accessed June 29, 2016]. URL:

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technological measures in order to promote fair use but not the second. These amendments

are in compliance with Article 11 of WCT and Article 18 of WPPT.28 In this regard, the Court

favored Arriba Soft Corporation in the case of Kelly v. Arriba Soft Corporation, stating that

Arriba’s use of Kelly’s thumbnail images in its search engine is under fair use.29

INDIA

The Indian Copyright Act of 1957 has been amended six times with the recent amendment

being made in 2012. The Copyright Bill 2012 makes the original Copyright Act compliant

with WIPO Internet treaties – WCT and WPPT. Article 7 of WCT and Article 9 of WPPT

obligate to provide for ‘commercial rental’ rights for computer programmes and

cinematograph films. A major amendment in Copyright Act 2012 to bring it in compliance

with WCT and WPPT was to replace the term ‘hire’ with ‘commercial rental’ in section 14

(d) and (e) and section 14(b) and (c) of the Act. This was done to specifically clarify the

scope of ‘hire’ to only commercial activities and not the non-commercial ones. Also, section

2(fa) defines the term ‘commercial rental’ to clarify that the right is applicable only to

commercial activities of giving on ‘hire’. Apart from introducing several new technological

protection measures to protect copyrighted works in cyberspace, the amended Act provides

special fair use provisions which have been extended to digital works now. The Fair Use

doctrine is discussed in detail in the following section.30 United States (basically DMCA) has

criminalized the facilitation of circumvention of TPMs (Technological protection measures)

which in turn has adversely affected technological innovation in the country because

technologies for other purposes which only incidentally allow circumvention have been

http://law.pace.edu/sites/default/files/CLE/2-6-14_DMCA.pdf28 THE ADVANTAGES OF ADHERENCE TO THE WIPO COPYRIGHT TREATY (WCT) AND THE WIPO PERFORMANCES AND PHONOGRAMS TREATY (WPPT). [Online; Accessed June 29, 2016]. URL: http://www.wipo.int/export/sites/www/copyright/en/activities/pdf/advantages_wct_wppt.pdf29 Kelly v. Arriba Soft Corp. [Online; Accessed June 29, 2016]. URL: http://fairuse.stanford.edu/case/kelly-v-arriba-soft-corp/30

Development In Indian IP Law: The Copyright (Amendment) Act 2012. [Online; Accessed June 29, 2016]. URL: http://www.ip-watch.org/2013/01/22/development-in-indian-ip-law-the-copyright-amendment-act-2012/

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outlawed. In contrast to DMCA, the Indian Act does not criminalize this circumvention either

directly or through the production of tool facilitating this circumvention.31

4.3 Fair Use Doctrine

According to the Fair Use doctrine, portions of copyrighted material are eligible for

the use of criticism or commentary without seeking permission of the author of that

work. But if the author disagrees with the user’s fair use interpretation of his work,

then the dispute may be solved by lawsuit or arbitration.32 There is a thin line between

infringement and fair use. US law uses the term “fair use” whereas British and Indian

law uses “fair dealing”.33 Let us discuss the basic provisions of fair use in the US and

India and compare and contrast between the two.

USA

According to the U.S. copyright law, there are four factors which are used to

determine if an infringement has occurred or not are: (1) purpose of use and type of

use – Commercial or educational purpose; (2) the nature of the copyrighted work; (3)

the amount and substantiality of portion of copyrighted work used; and (4) value of

copyrighted work.34 Based upon these factor, a US Court determines whether an act

of exploitation by a person falls within the ambit of fair use.35 Under U.S. legislation,

judge have comparatively more freedom to assess ‘fair use’ and possibly extend these

factors to new technology and copyright content. This is on contrast to Indian

legislation system where boundaries defined for ‘fair dealing’ are more societal and

31 http://jiplp.blogspot.com/2012/12/indias-new-copyright-law-good-bad-and.html32 Fair Use. [Online; Accessed June 29, 2016]. URL: http://fairuse.stanford.edu/overview/fair-use/33 Fair Use: Comparing US and Indian Copyright Law. [Online; Accessed June 29, 2016]. URL: http://www.jurist.org/dateline/2012/05/sandeep-kanak-rathod-copyright.php34 Copyright Protection in the Digital Age. [Online; Accessed June 29, 2016]. URL: http://www.acc.com/legalresources/quickcounsel/icpituscaeu.cfm35Fair Use: Comparing US and Indian Copyright Law. [Online; Accessed June 29, 2016]. URL: http://www.jurist.org/dateline/2012/05/sandeep-kanak-rathod-copyright.php

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friendly to common man. Title 17 of the United States Court defined that fair use of a

copyrighted work does not constitute an infringement of copyright.36. In this regard,

the landmark case of Sony Corp. V. Universal City Studios, Inc. (popularly known as

‘Betamax case’) was decided in the favor of plaintiff, Sony Corporation whereby the

Supreme Court held that the video tape recorders (VTRs) manufactured and marketed (via

retail establishments) by Sony constituted a fair use even though the copyrighted work was

100% copied. The reason behind such a judgement was that the main purpose of recording

shows was ‘time shifting’, i.e., delaying the system of viewing which did not deprive the

copyright owners of revenue. Hence, a fair use.37

INDIA

As discussed above. Indian law uses the term ‘fair dealing’ which is a “doctrine of

legal defenses that may be valid against copyright infringement actions.”38 The

statutory framework for fair dealing in India unlike the U.S. copyright law, does not

define fair dealing intrinsically and follows a common law. Section 52(a) of Indian

Copyright Act defines fair dealing as an exception to or defense for specific acts that

would not be reckoned as infringement for four categories of work – literary,

dramatic, musical or artistic work (not a computer program) for the purpose of

research, review or criticism.39 In this regards, the case of Gramophone company of

India vs Super Cassette Industries where the remix version of the original song produced by

the plaintiff was sold online by the defendant, was decided in the favor of Super Cassette as

36 Fair Dealing Week. [Online; Accessed June 29, 2016]. URL: https://www.uleth.ca/lib/copyright/content/fair_dealing_week/fair_dealing_vs_fair_use.asp37 SONY CORP. v. UNIVERSAL CITY STUDIOS, INC. [Online; Accessed June 29, 2016]. URL: http://caselaw.findlaw.com/us-supreme-court/464/417.html38 Copyright Protection in the Digital Age. [Online; Accessed June 29, 2016]. URL: http://www.acc.com/legalresources/quickcounsel/icpituscaeu.cfm39Protecting copyright in the cyberspace. [Online; Accessed June 26, 2016]. URL: http://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html

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the court cited the fair dealing provision of the Copyright Act saying that it is permissible to

make another sound recording by using different set of artists, musicians and singers.40

5. Remedies

USA

The remedies for civil or criminal infringement of copyrighted work as per §502 through

§505 have listed below:41

a) Under section 502 of US Copyrights Act, the court can order an infringement act to

cease after trial or even before trial if sufficient evidence of infringement or violation

of section 1201 is presented before the court.

b) Under section 503, the court can order impoundment of infringing works along with

the material involved to create them plus disposition of that work and material after

trial.

c) The infringer of copyright is liable for either:

actual damages suffered by the copyright owner in addition to any profits

made by the infringer via the copyrighted work (subsection (b));

40 Gramophone company of India vs Super Cassette Industries. [Online; Accessed June 29, 2016]. URL: http://delhicourts.nic.in/July10/THE%20GRAMOPHONE%20COMPANY%20OF%20INDIA%20LTD%20VS.%20SUPER%20CASSETTE%20INDUSTRIES%20LTD.pdf41

Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code Circular 92. [Online; Accessed June 29, 2016]. URL: http://www.copyright.gov/title17/92chap5.html#502

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statutory damages in case where the infringer proves in the court that his act

shall be considered as fair use (subsection (c)).

d) Under section 505, the court may award a reasonable attorney’s fee to the prevailing

party.

INDIA

There are three types of remedies against copyright infringement as per the Indian copyright

law:42

a) Civil remedies: Injunction damages or account of profit, delivering of infringing copy

and damages for conversion.

b) Criminal remedies: Seizure of infringed material and imprisonment/imposition or

both on infringer.

c) Administrative remedies: banning the import of infringing material into India by

moving Registrar of copyrights when the infringement is by the way of such

importation.

6. Conclusion

From the study conducted, it can be concluded that United States has a well-developed

copyright law to deal with the issue of copyright infringement while Indian copyright law

still lags behind. The Copyright Amendment Act of 2012 was originally aimed to be

technology friendly dynamic establishment for protecting copyrighted works, however 2

years down the lane, it has not been enacted to its full strength. Non-existent Copyright 42 Copyright. [Online; Accessed June 29, 2016]. URL: http://www.advocatekhoj.com/library/lawareas/copyright/remedies.php?Title=Copyright&STitle=Remedies%20against%20Infringement

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Board, vaguely written provisions and judicial scrutiny over certain provisions hinders the

operability of many portions of the Act. This has prompted increment in piracy rates in India

in spite of systems being created by different establishments. While on the other hand, US

laws have set down clear rules for the advantage of the courts and the Copyright laws have

been implemented properly. 43

But, the Indian legislation should not be criticized for ignoring the issue completely as it is

still in its incipient stage. It is expected that various new amendments and functional

improvements will be seen in coming decade which will facilitate to bring the Indian law at

par with the American law. Currently, there are some loopholes in the Indian act in the field

of jurisdictional issues, compliance with WIPO Internet treaties, liability of ISPs etc. It is

expected that coming decade will witness a growth in the complete jurisdiction itself.44

Thus, the research undertaken in this paper has identified the problem in judiciary systems of

both the nations and it can be concluded that the only lies in “effective and systematic”

implementation of laws in cyberspace.

43 Abhai Pandey, The Indian Copyright (Amendment) Act, 2012 And Its Functioning So Far. [Online; Accessed

June 29, 2016]. URL: http://www.ip-watch.org/2014/10/23/the-indian-copyright-amendment-act-2012-and-its-functioning-so-far/44 Mukherjee, Copyright Protection in Cyberspace-A Comparative Study of USA and India. [Online; Accessed June 26, 2016]. URL: https://www.ijsr.net/archive/v5i5/NOV163712.pdf

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References

1. Davenport, Thomas H., and Laurence Prusak. Information ecology: Mastering the information and knowledge environment. Oxford University Press on Demand, 1997. [Accessed June 25, 2016].

2. Skelton, Timothy L. "Internet Copyright Infringement and Service Providers: The Case for a Negotiated Rulemaking Alternative." San Diego Law Review35.1 (1998): 219-342. [Accessed June 25, 2016].

3. Intellectual Property Theft: Get Real. [Online; Accessed June 25, 2016]. URL: {http://www.ncpc.org/topics/intellectual-property-theft/facts-and-figures-1}.

4. Pedro Romeoaldo, Copyright Infringement, laws and Border on the Internet. [Online; Accessed June 26, 2016]. URL: https://web.fe.up.pt/~mgi97018/is/copyright.html

5. Betsy Rosenblatt, Copyright Basics by Betsy Rosenblatt, Harvard Law School. [Online; Accessed June 26, 2016]. URL: http://cyber.law.harvard.edu/property/library/copyprimer.html

6. Karnika Seth, Protecting copyright in the cyberspace. [Online; Accessed June 26, 2016]. URL: http://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html

7. Skelton, Timothy L. "Internet Copyright Infringement and Service Providers: The Case for a Negotiated Rulemaking Alternative." San Diego Law Review35.1 (1998): 219-342. [Accessed June 26, 2016].

8. Schlachter, Eric. "The intellectual property renaissance in cyberspace: why copyright law could be unimportant on the Internet." Berkeley Technology Law Journal (1997): 15-51. [Accessed June 25, 2016].

9. Hrishita Mukherjee, Copyright Protection in Cyberspace-A Comparative Study of USA and India. [Online; Accessed June 26, 2016]. URL: https://www.ijsr.net/archive/v5i5/NOV163712.pdf

10. Rachman, Melton, Gilbert Case Study: Viacom V. YouTube. [Online; Accessed June 26, 2016]. URL: http://www.dglaw.com/images_user/newsalerts/Rachman.Melton_Law360.Case.Study.Viacom.v.YouTube.April.19.2012.pdf

11. Viacom Int’l, Inc. v. YouTube. [Online; Accessed June 26, 2016]. URL: http://www.casebriefs.com/blog/law/intellectual-property-law/intellectual-property-keyed-to-merges/copyright-law/viacom-intl-inc-v-youtube/

12. Viacom v. YouTube. [Online; Accessed June 26, 2016]. URL: https://www.eff.org/cases/viacom-v-youtube

13. Rachman, Melton, Gilbert, Case Study: Viacom V. YouTube. [Online; Accessed June 27, 2016]. URL: http://www.dglaw.com/images_user/newsalerts/Rachman.Melton_Law360.Case.Study.Viacom.v.YouTube.April.19.2012.pdf

14. INDIAN COPYRIGHT ACT 1957. [Online; Accessed June 27, 2016]. URL: http://www.ircc.iitb.ac.in/webnew/Indian%20Copyright%20Act%201957.html

15. Muralidhar, S. "Jurisdictional Issues in Cyberspace." Indian JL & Tech. 6 (2010): 1. [Accessed June 28, 2016].

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16. Rosenblatt, Zippo Mfr. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). [Online; Accessed June 28, 2016]. URL: http://cyber.law.harvard.edu/metaschool/fisher/domain/dncases/zippo.htm.

17. Active vs. Passive Websites: How Businesses Can Navigate This Potentially Costly Distinction. [Online; Accessed June 28, 2016]. URL: https://www.reedsmith.com/active-vs-passive-websites-how-businesses-can-navigate-this-potentially-costly-distinction-04-06-2011/

18. Copyright Protection in Cyberspace-A Comparative Study of USA and India. [Online; Accessed June 26, 2016]. URL: https://www.ijsr.net/archive/v5i5/NOV163712.pdf

19. Calder v. Jones 465 U.S. 783 (1984). [Online; Accessed June 26, 2016]. URL: https://supreme.justia.com/cases/federal/us/465/783/

20. Ferrar, Garvais Meeting of the Minds—Liability of Foreign Companies under the Digital Millennium Copyright Act.). [Online; Accessed June 29, 2016]. URL: http://www.americanbar.org/publications/landslide/2013-14/january-february/liability_foreign_companies_under_digital_millennium_copyright_act.html

21. Perfect 10, Inc. v. Yandex N.V., No. 3:2012cv01521 - Document 191 (N.D. Cal. 2013). [Online; Accessed June 29, 2016]. URL: http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv01521/253123/191/

22. Dalal, Praveen. "The Long Arm Jurisdiction of Courts regarding Copy Right Law in India"." Journal of Intellectual Property Rights 9 (2004): 561. [Accessed June 29, 2016].

23. Banyan Tree Holding Ltd. V. A. Murali Krishna Reddy & ANR. [Online; Accessed June 29, 2016]. URL: http://www.aswal.com/pdfs/cases/case-48.pdf

24. M. Sarin, 106 (2003) DLT 554, 2003 (70) DRJ 742, 2003 (27) PTC 265 Del, 2003 (3) RAJ 506. [Online; Accessed June 29, 2016]. URL: https://indiankanoon.org/doc/418389/

25. WIPO Internet Treaties. [Online; Accessed June 29, 2016]. URL: http://www.wipo.int/copyright/en/activities/internet_treaties.html

26. IPO Internet Treaties. [Online; Accessed June 29, 2016]. URL: http://www.wipo.int/copyright/en/activities/internet_treaties.html

27. 3rd annual pace law exposition on intellectual property, sports and entertainment law: a closer look at the evolution of patents and the future of digital media. [Online; Accessed June 29, 2016]. URL: http://law.pace.edu/sites/default/files/CLE/2-6-14_DMCA.pdf

28. THE ADVANTAGES OF ADHERENCE TO THE WIPO COPYRIGHT TREATY (WCT) AND THE WIPO PERFORMANCES AND PHONOGRAMS TREATY (WPPT). [Online; Accessed June 29, 2016]. URL: http://www.wipo.int/export/sites/www/copyright/en/activities/pdf/advantages_wct_wppt.pdf

29. Kelly v. Arriba Soft Corp. [Online; Accessed June 29, 2016]. URL: http://fairuse.stanford.edu/case/kelly-v-arriba-soft-corp/

30. Development In Indian IP Law: The Copyright (Amendment) Act 2012. [Online; Accessed June 29, 2016]. URL: http://www.ip-watch.org/2013/01/22/development-in-indian-ip-law-the-copyright-amendment-act-2012/

31. http://jiplp.blogspot.com/2012/12/indias-new-copyright-law-good-bad-and.html32. Abhai Pandey, The Indian Copyright (Amendment) Act, 2012 And Its Functioning So Far.

[Online; Accessed June 29, 2016]. URL: http://www.ip-watch.org/2014/10/23/the-indian-copyright-amendment-act-2012-and-its-functioning-so-far/

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33. Mukherjee, Copyright Protection in Cyberspace-A Comparative Study of USA and India. [Online; Accessed June 26, 2016]. URL: https://www.ijsr.net/archive/v5i5/NOV163712.pdf

34. Fair Use. [Online; Accessed June 29, 2016]. URL: http://fairuse.stanford.edu/overview/fair-use/35. Sandeep Kanak, Fair Use: Comparing US and Indian Copyright Law. [Online; Accessed June 29,

2016]. URL: http://www.jurist.org/dateline/2012/05/sandeep-kanak-rathod-copyright.php36. Copyright Protection in the Digital Age. [Online; Accessed June 29, 2016]. URL:

http://www.acc.com/legalresources/quickcounsel/icpituscaeu.cfm37. Fair Use: Comparing US and Indian Copyright Law. [Online; Accessed June 29, 2016]. URL:

http://www.jurist.org/dateline/2012/05/sandeep-kanak-rathod-copyright.php38. Fair Dealing Week. [Online; Accessed June 29, 2016]. URL:

https://www.uleth.ca/lib/copyright/content/fair_dealing_week/fair_dealing_vs_fair_use.asp39. SONY CORP. v. UNIVERSAL CITY STUDIOS, INC. [Online; Accessed June 29, 2016]. URL:

http://caselaw.findlaw.com/us-supreme-court/464/417.html40. Copyright Protection in the Digital Age. [Online; Accessed June 29, 2016]. URL:

http://www.acc.com/legalresources/quickcounsel/icpituscaeu.cfm41. Seth, Protecting copyright in the cyberspace. [Online; Accessed June 26, 2016]. URL:

http://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html 42. Gramophone company of India vs Super Cassette Industries. [Online; Accessed June 29, 2016].

URL: http://delhicourts.nic.in/July10/THE%20GRAMOPHONE%20COMPANY%20OF%20INDIA%20LTD%20VS.%20SUPER%20CASSETTE%20INDUSTRIES%20LTD.pdf

43. Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code Circular 92. [Online; Accessed June 29, 2016]. URL: http://www.copyright.gov/title17/92chap5.html#502

44. Copyright. [Online; Accessed June 29, 2016]. URL: http://www.advocatekhoj.com/library/lawareas/copyright/remedies.php?Title=Copyright&STitle=Remedies%20against%20Infringement

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