Intellectual property rights in India (IPRs in India) consist of copyright, trademarks, patents, geographical indications, etc. These laws are properly drafted as per their time. However, with the passage of time, information technology has been giving them a tough fight. Online issues of IPRs are becoming a headache for India.For instance, trade secrets are stolen through cyber crimes, domain name protection is missing, copyright law of India does not address online copyright violations effectively, etc. In short, technological issues of IPRs in India need to be taken care of by the Parliament of India.
Copyright Law of India needs urgent amendments. Although Indian Copyright Act is due for amendments yet digital issues of Indian Copyright Act 1957 are still to be addressed by Indian Legislature. The Copyright Amendment Bill 2011 of India would be introduced very soon but it is still far from perfect to cover these issues.
The ease with which computers can transfer and exchange digital information on the Internet has caused concern among intellectual property owners, especially copyright owners. The information technology allows the computer users to easily and secretly transform the copyrighted materials into digital form and store them in their computer memory. Once a user digitised information, he can easily upload it to the Internet. Once the information is available on the Internet anyone in the world with Internet access can download, modify, and distribute it. Thus, in an instant, a copyrighted work can potentially lose its value and significantly suppress an author’s incentive to create new material.
Thus, with the advancement of information technology, copying, modifying, and distributing of copyrighted materials has become very simple and difficult to trace. The copyright owners are now at the mercy of a technology that has raced ahead of the law. Because the Internet “is a cooperative venture not owned by a single entity or government, there are no centralised rules or laws governing its use.
Traditionally there was only one copyright infringement theory known as “primary infringement”, which made the person infringing the copyright personally liable for his acts. Thus, the concept of third party liability or secondary liability was not recognised by the legal systems of various countries all over the world, including the United States. As the society progressed, need was felt to develop new theories to meet the challenges thrown by it. While there were no express provisions, which talked about infringing acts of another, third party liability theories were evolved in the courts over the years. The courts derived these theories from the traditional tort law and patent law theories of contributory and vicarious liability.
The U.S Supreme Court articulated the rationale for incorporating “third party liability” into the copyright law in Sony Corporation of America v Universal Studios, Inc. The court specifically noted patent law’s explicit statutory prohibition against inducing infringement and against contributory infringement, and held that the absence of express language in the Copyright Act did not preclude third party liability. Moreover, the court reasoned that “vicarious liability is imposed in virtually all areas of law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another.
Direct infringement is a strict liability offence and guilty intention is not essential to fix criminal liability. The requirements to establish a case of copyright infringement under this theory are:
(1) Ownership of a valid copyright; and
(2) Copying or infringement of the copyrighted work by the defendant.
Thus, a person who innocently or even accidentally infringes a copyright may be held liable under the Copyright Act of the U.S. and under the laws of various other countries. The guilty intention of the offender can be taken into account for determining the quantum of damages to be awarded for the alleged infringement.
The contributory infringement pre-supposes the existence of knowledge and participation by the alleged contributory infringer. To claim damages for infringement of the copyright, the plaintiff has to prove:
(1) That the defendant knew or should have known of the infringing activity; and
(2) That the defendant induced, caused, or materially contributed to another person’s infringing activity.
Vicarious copyright infringement liability evolved from the principle of respondent superior. To succeed on a claim of vicarious liability for a direct infringer’s action, a plaintiff must show that the defendant:
(1) Had the right and ability to control the direct infringer’s actions; and
(2) Derived a direct financial benefit from the infringing activity.
Thus, vicarious liability focuses not on the knowledge and participation but on the relationship between the direct infringer and the defendant.
Legal precedent for vicarious copyright infringement liability has developed along two general relational lines. The first relational line involves the employer/employee relationship, whereas the second involves the lessor/lessee relationship. The advent of information technology has made it difficult to apply the traditional theories to various cyberspace entities and organisations.
An Internet Service Provider (ISP) provides Internet access and he may be held liable for copyright infringement.
In Religious Technology Center v Netcom On-Line Communication Services, Inc a former minister uploaded some of the copyrighted work of the Church of Scientology to the Internet. He first transferred the information to a BBS computer, where it was temporarily stored before being copied onto Netcom’s computer and other Usenet computers. Once the information was on Netcom’s computer, it was available to Netcom’s subscribers and Usenet neighbors for downloading for up to eleven days. The plaintiffs informed Netcom about the infringing activity; nonetheless, Netcom refused to deny the subscriber’s access because it was not possible to prescreen the subscriber’s uploads, and kicking the subscriber off the Internet meant kicking off the rest of the BBS operator’s subscribers. Thus, plaintiffs sought a remedy against Netcom for infringement under all three theories –direct, contributory, and vicarious.
The court first analysed whether Netcom directly infringed plaintiff’s copyright. Since Netcom did not violate plaintiff’s exclusive copying, distribution, or display rights, Netcom was held not liable for direct infringement. The court then analysed the third party liability theories of contributory and vicarious infringement. The court held that Netcom would be liable for contributory infringement if plaintiffs proved that Netcom had knowledge of the infringing activity. The court then analyzed whether Netcom was vicariously liable. Here, once again the court found that a genuine issue of material fact supporting Netcom’s right and ability to control the uploader’s acts existed. The court found that Netcom did not receive direct financial benefit from the infringement. Thus, the court found that the Netcom was not liable for direct infringement, could be liable for contributory infringement if plaintiffs proved the knowledge element, and was not liable for vicarious infringement.
To meet the ever- increasing challenges, as posed by the changed circumstances and latest technology, the existing law can be so interpreted that all facets of copyright are adequately covered. This can be achieved by applying the “purposive interpretation” technique, which requires the existing law to be interpreted in such a manner as justice is done in the fact and circumstances of the case. Alternatively, existing laws should be amended as per the requirements of the situation. The existing law can also be supplemented with newer ones, specifically touching and dealing with the contemporary issues and problems.
We would discuss the role and responsibility of Internet Intermediaries of India in the field of Copyright in a separate article. The same would also carry the legislative provisions in this regard as applicable in India.
