Wednesday, June 22, 2011

Role And Responsibility Of Internet Intermediaries In The Field Of Copyright In India

Intellectual property rights in India (IPRs in India) consist of copyright, trademarks, patents, geographical indications, etc. With the passage of time, technology has also become an integral part of IPRs protection and their violations.

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.

The traditional theories of attributing liability to as copyright violator in an online environment are not suitable and we need a liability framework that is expressly applicable to online copyright violation cases.

Countries like United States have created dedicated laws like online copyright infringement liability limitation act (OCILLA) in this regard. However, in India we have no such dedicated law for dealing with online copyright violations cases.

Of course, by “purposive interpretation” we can apply the existing laws to the online copyright violations cases yet in the long run it would prove to be counter productive.

In the Indian context, the Indian Copyright Act 1957 along with the Information Technology Act 2000 deals with cyber law due diligence and intermediaries’ liability for online copyright violation issues. The indirect reference to online copyright issues can be found in these laws.

(1) Copyright Act, 1957 and on-line copyright issues: The following provisions of the Copyright Act, 1957 can safely be relied upon for meeting the challenges of information technology:

(a) The inclusive definition of computer u/s 2(ffb) is very wide which includes any electronic or similar device having information processing capabilities. Thus, a device storing or containing a copyrighted material cannot be manipulated in such a manner as to violate the rights of a copyright holder.

(b) The copyrighted material can be transferred or communicated to the public easily and secretly through electronic means. To take care of such a situation, the Copyright Act has provided the circumstances which amount to communication to the public. Thus, making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available, may violate the copyright. The communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.

(c) The copyright in a work is infringed if it is copied or published without its owner’s consent. The Copyright Act provides that a work is published if a person makes available a work to the public by issue of copies or by communicating the work to the public. Thus, the ISPs, BBS providers, etc may be held liable for copyright violation if the facts make out a case for the same.

(d) The copyright in a work shall be deemed to be infringed when a person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-

(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

(ii) Permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.

It must be noted that copyright can be obtained in a computer programme under the provisions of the Copyright Act, 1957. Hence, a computer programme cannot be copied, circulated, published or used without the permission of the copyright owner. If it is illegally or improperly used, the traditional copyright infringement theories can be safely and legally invoked.

Further, if the medium of Internet is used to advance that purpose, invoking the provisions of the Copyright Act, 1957 and supplementing them with the stringent provisions of the Information Technology Act, 2000, can prevent the same.

(2) Information Technology Act, 2000 and on-line copyright issues: The following provisions of the Information Technology Act, 2000 are relevant to understand the relationship between copyright protection and information technology:

(a) Section 1(2) read with Section 75 of the Act provides for extra-territorial application of the provisions of the Act. Thus, if a person (including a foreign national) violates the copyright of a person by means of computer, computer system or computer network located in India, he would be liable under the provisions of the Act.

(b) If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium, he shall be liable to pay damages by way of compensation to the person so affected. Thus, a person violating the copyright of another by downloading or copying the same will have to pay exemplary damages which may be deterrent enough to prevent copyright violation.

(c) While adjudging the quantum of compensation, the adjudicating officer shall have to consider the following factors:

(i) The amount of gain or unfair advantage, wherever quantifiable, made as the result of the default;

(ii) The amount of loss caused to any person as a result of the default;(iii) The repetitive nature of the default.

Thus, if the copyright is violated intentionally and for earning profit, the quantum of damages will be more as compared to innocent infringement.

(d) An “intermediary” may be exempted from liabilities of online copyright violation issues if it meets the requirements of section 79 of the information technology act 2000. However, if the intermediary fails to observe “due diligence”, this safe harbour provision would not protect it.

(e) The provisions of this IT Act 2000 shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

We at Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that the information technology act, 2000 and Indian copyright act 1957 requires a new outlook and orientation, which can be effectively used to meet the challenges posed by the IPRs regime in this age of information technology.

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.

Till the country has such a sound and strong legal base for the protection of IPRs, the judiciary should play an active role in the protection of these rights, including the copyright and intermediaries’ rights.