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Keeping Up With Technology?

Published on Wed, May 23,2012 | 15:48, Updated at Wed, May 23 at 15:55Source : 

By: Apar Gupta, Partner, Advani & Co.

The last time the Indian parliament substantially visited the Copyright Act and amended its provisions was in 1994 (disregarding the minor TRIPS amendment in 1999). At that time I had just entered secondary school and partly due to my age, but largely due to the technology, I remember besides the television, radio and my father’s books the only content available at home was a newspaper tossed over every morning in the garden.

In a sense the content rich-saturating lives which we live today was not contemplated by the Copyright Act even as it stood after 1994. It was certainly not the legislature's fault for few could have anticipated the tremendous rise in technology and those who did are billionaires having made an early investment in a hot technology startup such as Facebook. Hence a query which arises naturally is that, whether the new and updated Copyright Act along with redressing the faults of the statute also makes it relevant for the present and the future.

New Definitions
Kapil Sibal, the Minister for Human Resource Development, introducing the Copyright Amendment Bill, 2010 on the floor of the Rajya Sabha on May 17, 2012 made extensive reference to the widespread use of technologies and the need to keep the Copyright Act abreast with these developments. One of the cornerstones of the Amendment Act is how Copyright is created. For this the definition of, “communication to public”, under Section 2(ff) has been substituted and this considerably broadens and clarifies the creation of a copyright through digital diffusion.

One does not have to travel far for the next amendment, as the definition clause contains another significant addition relating to technology with the insertion of Section 2(xa), which defines, “rights management information”. The definition brings India in compliance with Article 12 of the WIPO Copyright Treaty and Article 19 of the WIPO Performances and Phonograms Treaty (even though it is not a signatory to either treaty). The definition is made with the objective of helping the content creation industry effectively combat digital piracy through the retention of identification information in the content and control it through a digital rights management (DRM) system.

Protection of Technological Measures
The definition of, “rights management information”, ties in some newly created offenses under Sections 65A and 65B which provide for the protection of technological measures and rights management information respectively. Section 65A is concerned with the prevention of circumvention of DRM technologies. Much criticism was leveled on the insertion of such a provision – the arguments being that rights holders could use such technologies to extend the level of protection afforded to them by the Act itself. However now Section 65A has the force of law and provides for upto 2 years imprisonment for any person circumventing an effective technological measure with the intention of infringement.

Section 65B further aims to bolster protection for content distributed digitally by rights holders when it seeks to provide for imprisonment upto 2 years to any person who removes, alters or distributes any rights management information present in the content without authority.

Some new copyrights
Even the rights to reproduction of an Artistic work have been expanded under Section 14(c)(i) to now expressly include the right to reproduce and store the work in any medium including an electronic one. This has been similarly extended with respect to the right to make a copy of a cinematograph film under Section 14(d)(i)(B) and sound recordings under Section 14(e)(i).  

Cold Comfort for Internet Intermediaries
Ever since the judgment in Super Cassettes Industries v. Myspace Inc. was pronounced by the Delhi High Court, the liability net for Internet companies which facilitate the transmi


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