Copyright in Digital EnvironmentByBuddhi Prakash Chauhan

IPR Lectures

Learning Objectives

1. To highlight the challenges brought about by digital revolution to the copyright issues,

2. To analyze the complexities in applying copyright legislation in digital environment

3. To discuss, the extent to which the existing copyright laws in India, UK and USA have succeeded in meeting these challenges, and

4. To discuss some of the non-legislative initiatives/solution to address the digital challenge

SourcesInternational/Regional Berne Convention for the Protection of Literary and Artistic

Works, 1886 (Berne) WIPO Copyright Treaty 1996 (WCT) WIPO Performances and Phonograms Treaty 1996 (WPPT) EC E-commerce Directive EC Information Society DirectiveIndia Copyright Act 1956 (ICA) Information Technology Act 2000 (IITA)UK Copyright , Designs and Patent Act 1988 (CDPA)USA Copyright Act 1976(USCA) Digital Millennium Copyright Act 1998 (DMCA)

Technological Development

New Forms of copyrightable works Digital, multimedia,

New methods and tools of creation, adaptation, reproduction

New methods of use, communication, publishing, distribution

New methods of protections from unauthorized access

New sets of people involved

Technology and Copyright

Technology in creation: authoring tools, hosting tools, CIP, social networking, open source, open archive, new forms, multimedia, combination of work and service, quick production/transformation, customized products (Wikipedia)

Technology in Rights Management: Access control, e-commerce, dissemination, miniaturization, rights management systems

Technology in Detection: IP tracking, tools, logs, Technology in infringements: hyperlinks, sharing, web 2.0

Copying: Ease of Replication, web tools: hyperlinks, sharing, web 2.0, difficulty in differentiation

Distribution: Ease of Transmission and Multiple Use, miniaturization, compression,

Adaptation: Plasticity of digital media: Can be converted into any form- Multimedia

Legislative Response to the digital challenge Provisions becoming ineffective to address the

challenges New economic order: Information and

knowledge economy Fast pace of development require innovative

legislative measures which remain relevant to address future challenges

Increasing use of non-statutory measures and counter measures as the existing legislation were found inadequate

Rebalancing of public rights and owners rights

Copyright Issues in Digital Environment Subject of Copyright: Work Authorship/ownership

Undefined, Collaborative authorship, Pseudonymous, anonymous authorship, Open Source, Community, Service Provider, browsers, search engines, harvesters Machine Generated- Translations, Qualification: Citizenship, Place of publication

Originality Infringement: Infringers and their liability, Fair

Dealing Non statutory restrictions (Protective Measures)

Subject of Copyright : Form

Original literary, dramatic, musical and artistic works.

Cinematograph Sound Recording Broadcast: ▪ Communication to the public by any means of wireless

diffusion, whether in any one or more of the forms of signs, sound or visual images; or

▪ By wire, and includes a re-broadcast (Sec 2 (dd)) Typographic Arrangement of published edition

(UK CDPA) Fonts (CDPA)

Subject of Copyright

Special forms Computer program Database Multimedia Computer Games Website Transmissions: video conference,

webcast, Web TV

Fixation ICA: Nothing expressly mentioned. Expression IITA [Sec 4] Legal Recognition of Electronic Records:

Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference

CDPA : Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; …

US CA : in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device

Rights & InfringementsPotential Infringers Content providers Site operators General service providers Access providers Hosting services Communication providers Location tool providers Subscribers, users

Rights & InfringementsLiability considerations Substainality Relevant rights direct or associated infringement Duty of care: by policy notification, warnings, other

reasonable efforts to prevent infringement Knowledge available to the infringement Authorization by the defendant Participation and/or assistance provided in overall

infringement activity Extent of Control Inducement to others Intention or negligence Economic advantage

Rights & Infringement

Economic Rights Reproduction Adaptation & Translation Distribution Communication Right against circumvention of

technological measures Moral Rights Sui generis

Types of Infringements

Primary: Reproduction, adaptation, sale/rental

Secondary Other than copyright: piracy,

counterfeiting, bootlegging

General Defense to infringements Mere idea not the expression Idea merged in expression Non creative portion/material Material dictated by external factors

(facts, directory) Material in public domain

Rights & InfringementsPlace Complexities on Internet Place where work was created is

relevant Where the infringement takes place is

relevant Which court has the jurisdiction

1968 Brussels Convention 1988 Lugano Convention on Jurisdiction and

Enforcement of Judgments in Civil and Commercial Matters

Brussels I Regulation (EC44/2001)

Rights & Infringement: Reproduction

Reproduction rights, as set out in Art 9 of Berne Convention and exceptions permitted thereunder , fully apply in the Digital Environment, particularly to use of works in digital form. It is understood that storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention. (Agreed Statements concerning Article 1 (4) of WCT)

Important Factors to be considered Form, duration, scope Internet transmissions results into reproduction on several servers Live telecast Private copying: E-commerce model, fee based, revenue sharing,

exchange, peer to peer sharing

Rights & Infringement: ReproductionCDPA Sec 17 Copying in relation to a literary, dramatic,

musical or artistic work means reproducing the work in any material form.

This includes storing the work in any medium by electronic means.

Copying in relation to any description of work includes the making of copies which are transient

or are incidental to some other use of the work.

Rights & Infringement: Reproduction

Instances in Internet’s context Posting or uploading copyrighted contents on a

website Linking: surface linking , deep linking Framing Caching: current pages, past visits, caching on a

server (ISP or webserver) : for faster retrieval, outdated, may deprive owner of advertising

Archiving: mirroring Thumbnails of images : Perfect10 v/s Google Peer to peer sharing: Napster case, KaZaa, Grokster Bit Torrent file sharing

Rights & Infringement:Adaptation & Translation

Technology enabled, customized, fast, multimedia convergence

Fixation not required in adaptation : it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the act is done

Rights & Infringement:Distribution, Communication and Broadcast

On demand, (Liability?) Uploading on the site: it is immaterial

whether some one actually downloads or views the material (see sec 2 Communication to the public, sec 20 CDPA)

Complexities of time & space & liability Broadcaster Rights & Performers Rights:

Same provisions as in other forms will apply to webcast also. (who is broadcaster?)

Rights & Infringements Public performance

Operator of the equipment are excepted from infringement

“Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement” CDPA S. 19(4)

Rights and Infringements: Secondary Infringement Import of infringing copy Dealing with infringing copies: possession, sale, let for hire,

display, distributes Makes, imports, distributes, possess an article specifically

designed or adapted for making copies of that work, knowing or having reason to believe that it is to be used to make infringing copies. Making website available for copying or electronic transmission or

performance Copyright in a work is infringed by a person who without the license

of the copyright owner transmits the work by means of a telecommunications system (otherwise than by communication to the public), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the United Kingdom or elsewhere. CDPA Sec 24(2)

Permitting use of premises for infringement by performance

Limitations & ExceptionsBalance between interest of the rights owner and public interest of research & innovation

Article 13 TRIPS (3 step test) Members shall confine limitations or exceptions to exclusive rights to –

▪ certain special cases ▪ which do not conflict with a normal exploitation of the work and ▪ do not unreasonably prejudice the legitimate interests of the right holder.

WIPO Copyright Treaty (Art 10)▪ Reasonable quotations▪ Use as illustrations for teaching

Fair Dealing: Benefit should not be unfair to the rights owner Intended use/audience of the copy: Commercial motive, deprive the owner

business opportunity Nature of the copyrighted work: e.g. student text, unpublished material, Means of obtaining copy : illegal means can not justify fair use defense Amount, substantiality and importance of the portion taken

Limitations & Exceptions: EducationalCopying & public distribution by educational institutions for instruction Non reprographic copying (sec 32 CDPA)

is fair dealing with the work, (b) is done by a person giving or receiving instruction, (c) is not done by means of a reprographic process, and (d) is accompanied by a sufficient acknowledgement

Reprographic means (Sec 36 CDPA), non commercial 1% per quarter Where there is no license is available With due acknowledgment

Fair Dealing

Research or private study Non commercial research Sec 29 CDPA Copying by a person other than the researcher or

student himself is not fair dealing if— (a) in the case of a librarian, or a person acting on behalf of a librarian, he does anything which regulations under section 40 would not permit to be done under section 38 or 39 (articles or parts of published works: restriction on multiple copies of same material), or(b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.

Criticism, review & news reporting Incidental inclusion of copyright material.

Service Provider’s Liability Service Provider means an entity offering the transmission,

routing or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received

A provider of online service or network access, or the operator of facilities (DMCA Sec 12 (K)

Indian IT Act 2000 "Intermediary" with respect to any particular electronic records,

means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

Service Provider’s Liability (US)Limited Liability for infringement :No monetary relief ; only limited injunction Transitory Digital Network Communications

If transmission started by someone else than the ISP Transmission is through automatic means without selection of

material ISP has no role in selection of recipient except automatic

response to request Transient copy is not kept for longer than required for routing

etc. No modification of contents is done

System caching Information residing on systems or networks at

directions of users Information location toolsDMCA (s202)

Service Provider’s LiabilityNo Liability If a nonprofit higher educational institution is service

provider, infringement by a teacher or student can not be attributed to the institutions

Replacement of removed or disabled material ; by ISP on good faith

Copying for Time shifting: Different time zonesLiability for misrepresentation of infringement Eligibility of ISP for limited liability adoption, implementation and communication of a policy

for termination of service to repeat infringers measures to identify infringers Take down notices

DMCA (s202)

Service Provider’s LiabilityIITA[Sec 67 C] Preservation and Retention of information by intermediaries: (1) Intermediary shall preserve and retain such

information as may be specified for such duration and in such manner and format as the Central Government may prescribe.

(2) Any intermediary who intentionally or knowingly contravenes the provisions of sub section (1) shall be punished with an imprisonment for a term which may extend to three years and shall also be liable to fine.

Computer Programs

ICA, CDPA “Literary work” includes computer programmes, tables

and compilations including computer databases. “Computer programme” means a set of instructions

expressed in words, codes, schemes or in any other form, including a machine readable medium, capable or causing a computer to perform a particular task or achieve a particular result

USCA: set of statements or instructions to be used directly in

a computer in order to bring about a certain result

Computer Program

Art 4 WCT; Computer programs are protected as literary works within the meaning of article 2 of Berne Convention, whatever be the mode or form of their expression

Sec 2 (o) ICA: Literary Work includes computer programmes, tables & compilations including computer databases

Computer Program: complexities ICA: Additional rights of sale, commercial rental right in

addition to the other rights in a literary work Complication of expression and technical issues. Computer

program copyright by definition involves questions with both imaginative and technical aspects

Differ from jurisdiction to jurisdiction “Look and Feel” doctrine

Look: demonstrative aspects, literal element: visual display Feel: non-literal aspects: structure, sequence and organization

(navigation), Flow The abstraction-filtration-comparison test:

Abstraction: components or items of the programme are identified Filtration: components which are protected are identified Protected components are subjected to similarity test.

Computer Program: Rights & Infringement

Adaptation in relation to a computer program, means an arrangement or altered version of the program or a translation of it; (CDPA)

Exceptions (ICA)1.To use for intended purposes2.for back up copy3.Any act for obtaining inter-operability4.Observation, study or testing for studying idea behind5.Copying or adaptation of personal, legal copy for non-commercial purpose

Computer Program: fair dealing It is not fair dealing—

(a) to convert a computer program expressed in a low level language into a version expressed in a higher level language, or(b) incidentally in the course of so converting the program, to copy it, (these acts being permitted if done in accordance with section 50B (de-compilation)). (CDPA)

Databases Art 5 (WCT): Compilation of data (Databases):

Compilation of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation

India: categorized as literary work, and have same protection as a literary work, but not separately defined

Database

CDPA: a collection of independent works, data or other materials which Are arranged in a systematic or methodical

way, and Are individually accessible by electronic or

other means.Q. Will an encyclopedia, music album, law report qualify as Database?Source in EEC: EC Directive on Databases (1996)

Database: Rights and Infringement Ownership issues Originality:

“sweat of brow” test (before 1996) By reason of selection and arrangementQ: repackaging and rearranging the information. Will it create a new copyright?

Substantial extraction and reutilization is an infringement. Repeated insubstantial extraction and utilization also infringement, if it conflicts with owners right of normal exploitation

Adaptation in relation to a database, means an arrangement or altered version of the database or a translation of it;

Moral Rights and fair dealing not available in UK/EC In India, however, same rights as available to literary works are

applicable to database. Term: 15 years in UK. 60 years in India Qualification: in EEC countries only, unless an overseas entity has

continuous connection in EEC

Protection for technological measures Protection Measures by Rights Owner to control access, such as

Encryption Digital watermarking Hardware key/soft keys/registration Copyright management systems: licensing, payment

Types of measures: access control, anti-copying , and Copyright management information

May prevent rightful access to copyrighted material, and thus hamper innovation.

WCT Art 11: requires members to provide adequate legal remedies against the circumvention of effective measures

Circumvention of technological measures

To descramble, decrypt or otherwise to avoid, by pass, remove, deactivate, or impair a technological measures without the authority of the rightful owner

Unauthorized use of access technology (eg. Password) does not constitute circumvention

exceptions: Libraries, archives, and educational institutions. Law enforcement, security agencies, For reverse engineering to achieve inter operability For encryption research If the measures are for collecting personal information or online

activity For testing security of the system(DMCA Sec 103)

Circumvention of technological matters There is no explicit provision for Fair Use defense in circumvention

of technological measures DMCA Sec 103 (Sec 1201 Copyright Act):

Circumventing access control measures: (applies to only anti-access measures not anti-copying measures)▪ Work should be legally protected by the Copyright Act▪ Should be primarily designed or produced for access

control▪ Circumventing devices should have limited commercially

significant purpose, other than to circumvent▪ Technological measure should effectively control access▪ Defendant must have actually circumvent the measures

Anti-trafficking rules apply to both

Protection for technological measures Trafficking in circumvention devices and services

Applies to both anti-access as well as anti-copying devices and services

Should be primarily designed to circumvent and not incidental, or

Should have only limited commercial significant purpose or use other than circumvention, or

Is marketed for use in circumvention Section 1201 DMCA separates circumvention of

technological measures from copyright infringements and fair use exceptions

Section 1201 even protects elements that may not be protected under copyrights

Protection for technological measures Case

Universal City Studios, Inc. v Reimerdes

Linking

Surface linking Deep linking Framing Meta tags: trade mark and other

violations

Moral Rights To claim ownership Against distortion, mutilation, modification, misattribution,

withdraw, relinquish-▪ prejudicial to his honour or reputation ▪ during the term of copyright

Berne Art 6bis Independently of the author’s economic rights, and even after the transfer of

the said rights, the author shall have the right to claim authorship of the work and so to object to any distortion, mutilation or other modification of, or other der0gatory action in relation to, the said work, which would be

prejudicial to his honour or reputation. US: Visual Artists Rights Act of 1990

Provides moral rights only for works of visual art

Specific Exceptions ISP’s Essentials

Transient or incidental Copies (Caching, hosting, browsing)

Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work. (S. 16 (4) CDPA)

as an essential part of technological process, For the purpose of transmission of the work in a network, and without economic significance. Excepted (S 28A CDPA)

Web 2.0 User generated contents: social networking

sites Uploading without authorization Hosting of infringing contents Downloading of infringing content by the accessor

Content aggregation Virtual worlds: multiple rights Copyright complexities in Web 2.0

Ownership & Licensing Collaborative and joint ownership Liability for infringement

Multimedia

Can the definition of Cinematograph be extended ?

Libraries and Digital Information

Deposit Libraries can copy from internet certain material in certain circumstances (Sec 52 CDPA)

Abstract of articles in Scientific & Technical periodicals can be copied and issued to the public without infringement. (S 60 CDPA)

Digitization of copyrighted material▪ Google books▪ Gutenberg Project▪ JSTOR

Digital Libraries & Institutional archives▪ Digitization▪ Uploading, storing, hosting, linking

Open Source Why? Inadequate legislative provision on one side and restrictive

licensing regime on other side, compatibility with other category of products Monopoly, forced bundling and piggybacking (other products and

services) Unaffordable

What? Collaborative development Generally free of cost Problem of uniformity Copyright license by the author Copy left movement Linux, KOHA, Dspace, Chrome

Open source licensing GNU General Public License GNU Lesser General Public License BSD: Berkeley System Distribution Netscape Public License Creative Commons

No payment is made License terminates if violated, but no

enforcement Non revocable If right assigned to copyright societies CC can

not be given

Open Archives

Open Archives Restriction on free access to research

publications Access is free. Author pays Facilitate free exchange of knowledge and

innovation Fast and authentic legal access Open Archives Initiatives: technology and

protocols All types of material available books,

journals, course material, theses

Copyright Management Issues in Digital Environment

Macro level Balancing Legislative, Licensing and

Contractual obligation Uniform legislation. World Copyright

Law Uniform global licensing system Limited period for appearance of

authors of anonymous works Copyright Societies Licensing through local tribunal

Copyright Management Issues in Digital Environment

Organizational/micro level issues Ownership

Securing copyright in research and other publications, registration

Employment policy IPR Policies, and practices: licensed products

Acquisition License terms Monitor infringements

Protecting and exploiting copyright Registration

Licensing in Digital Works Reuse of earlier works:

Existing agreement with or without future use in digital form

No agreement-freelance journalists Contractual or bare license Overriding provisions: as per exception clauses Types:

Express written contractual license Shrink Wrap License: packaged products, agree when you

open the seal, installation/registration process Click-wrap license: packaged products, online products Implied license: copyright notice, mother license

(subscription registration),