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Keeping Up With Technology?

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

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 transmission, hosting and distribution of user generated content increased tremendously. The court in the abovementioned case ruled that the safe harbours contained under Section 79 of the Information Technology Act, 2000 did not extend to cases of copyright infringement and would not exempt their liability. Here the newly christened Section 52(b) and Section 52(c), provide Internet companies with some comfort.

Section 52(b), provides that transient or incidental storage of works made in the technical process of electronic transmission or communication to the public shall not constitute an infringement of copyright. Section 52(c) further provides that the transient and incidental storage for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy also shall not constitute an infringement of copyright. Broadly, this provision would provide protection to Internet intermediaries only when they are providing transient or incidental storage; they have reasonable grounds for believing that such storage is not of an infringing copy and the rights holder has not expressly prohibited it. It is not out of place to state, that the phrasing of the section does leave much to desire in terms of precision and specificity.

The proviso to Section 52(c) further complicates matters when it states that, when such a person gets a written notice from a rights holder that such storage is an infringement then that person shall refrain from facilitating the access for a period of twenty-one days. This take down continues beyond the twenty-one days if the rights holder has a judicial order which records such. If the rights holder fails to get such a court order within twenty one days of the notice then the access is restored. This is obviously a provision which will promote litigation immensely and if the objective was to keep Internet intermediaries out of court, that has surely not come out in the law.

It is also relevant to note that the section does not provide for the time period within which the Internet company has to act. The lack of such specificity and a fully fleshed notice and take down procedure will only make more copyright infringement litigation rise. Unless the Government sees an increase in stamp cost earned through the filing of such Suits as a net benefit, there is no excuse for such legislative lethargy in omitting to draw up a detailed notice and take down provision.

A broad reading
Any Copyright statute creates a limited monopoly due to which it will in a sense remain the statute of Ann – fixed in a vacuum while trying to govern matter born out of human creativity. While providing tremendous benefit to some it will cause tremendous inequity to a few, be applicable and relevant while seeming outdated at the same time. It also juxtaposes the narrative of property rights with the competing interests of access to knowledge.

In this respect the Copyright Act is a continuing dialogue hasted due to the ubiquity of technology. Through the amendments which have been inserted one does not only notice some positives and negatives but an ongoing conversation between the black letter of the law and the restless tip of a brush waiting to be thrust into a palette.
 
Apar Gupta
Partner,
Advani & Co.

Authors Note: The Copyright Amendment Bill, 2010 which was passed in the Rajya Sabha on May 17, 2012 forms the basis of this Article. The provisions which relate to access of works by persons with disabilities is certainly laudable though is omitted keeping in view the scope and the audience for this article.

 
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