COMPUTER PIRACY, COPYRIGHT CONCERNS & CONFLICTS OF
INFORMATION TECHNOLOGY: NEED FOR AN INTERACTIVE APPROACH
Mohd. Salman Waris1
INTRODUCTION
In view of the tremendous opportunities and advantages of cybernetics and phenomenal
growth of internet, mobile technologies, digital instrumentation, there have arisen serious judicial
concerns of techno-legal dimension more specifically in the arena of intellectual property rights
(IPR) regime. The internet, with rapid spinning of the World Wide Web (www), mass reeling of
hyper text transfer protocol (http) and hyper text marking language (html), has become the most
efficient distribution mechanism; it is also the largest forum for discussion on computer
programmes and software and its largest producer and market. Thus the key business of the
internet is computer software. At the same time it plays host to the largest number of piracy web
sites from where one can download software.
While the issue of computer piracy and copyright violations are as such not new.
However, the onset of the digital environment is often termed as death kneel for copyright law,
as the jurisprudential foundations and ideological mooring of the copyright, information
technology and cyber laws are juxtaposed to each other in many respects. The classical copyright
law indoctrinates encapsulates the tenets of property law, commercial law, intellectual law and
above all the moral laws. 2 The procedural and institutional mechanism premised on these
grounds as natural corrolly makes the plagiarism, piracy and unethical intellectual prospecting a
taboo. On the other hand information technology and cyber laws are basically a value free
jurisprudence and conceptually heralds universal dissemination and liberal propagation of
knowledge by transcending geographical, legislative and managerial obstacles. Repudiating the
monopolistic characterization of knowledge under the copyright law the propounder of cyber
upheaval maintains that information and knowledge is not an abstract form as understood by the
people but is an economy itself to be quantified and equated into monetary terms.3
Thus the legal fraternity is faced with several major challenges such as
identity and fixity of liability for copyright infringement, application of law and jurisdiction,
specific nature and content of infringing act, relative prosecutorial action against originator of
materials, recipient of knowledge and network operators and providers. Since computer software
is not a monolithic entity but can be chipped into several components, varying degrees of
intellectual and innovative content.4 The conflicting sets of judicial anxieties have necessitated
the fine-tuning and radical overhauling of omnipotent and omniscience cyber jurisprudence. 5
This paper tries to dove tail the copyright concerns and technological imperatives of cybernetics
addressing the issues that arise out of having computer software on the internet, the manner in
which piracy is done, the rights and liabilities of the various parties involved in the process and
the steps taken to curb it, to arrive at a suigeneris law in the conspectus of global and
comparative jurisprudence.
1
The author is a student of Aligarh Muslim University,Aligarh India ,can be contacted at
mohdsalmanwaris@hotmail.com
2
Faizan Mustafa, “Copyright Law: A Comparative Study” 6 (1998)
3
Md. Salman Waris “Copyrights And Legal Protection Of Software”, Paper presented at the WORLD CONGRESS
FOR INFORMATICS AND LAW II Madrid - Spain - 2002, Cradle of a Global World Venue Law School,
Complutense University of Madrid 23 - 27 September 2002.
4
Supra note 2, at Pg. 121
5
Supra Note 3.
Origin and Meaning of Copyrights
Copyrights were recognized far back as the Roman civilization, where a creator of a manuscript
was considered to have rights over his creation. However, the rights only existed as long as the
owner was in possession as the rights were similar to rights over tangible property. The basic
principle of copyright is based on the “eighth commandment”-“Thou shall not steel.”6
Copyright law assumed significance with the invention of the printing press. 7 The
first Copyright Act was enacted in 1710 in England known as Statute of Anne. After the Statute
of Anne, copyright law became less a tool of the state and more a tool of authors and
publishers.8Such a development reflected both an increasing respect for the rights of the authors
as well as the growing economic opportunity of authors' creations.9Thereafter, other countries
around the world introduced similar statutes to protect copyright.
Traditionally as such copyright means the exclusive right to do or authorize
others to do certain acts in relation to:
1. Literary, dramatic musical and artistic works,
2. Cinematography film and;
3. Sound recording. 10
The nature of the acts varies according to the subject matter. Basically copyright is the right to
reproduce the work in which copyright subsists. Thus any original published or unpublished
literary work automatically acquires copyright and is protected by simply recording it in any
tangible form.
Copyrights and the Present Scenario
The most significant technological development of the 20th century was the
invention of the digital technology and it has immensely influenced enriched and revolutionized
the transmission and the quality of dissemination of information by converging the existing
technologies such as sound recording, visual recording and printing. Thus the emergence of
internet as a powerful and reliable platform for communication facilitated the creation of new
works in the form of multimedia. These new opportunities in the internet enabled many to
exploit the materials available in the digital form without the permission of the creators posing
threat to this new capital formed in the area of information creation. This created many new
challenges for the existing legal norms particularly that of copyright inter-alia its protection and
regulation on the internet.
An indication of the relative importance and complexity of the issues involved can be taken from
a recent World Intellectual Property Organization (WIPO) estimate that on less than 90% of the
total investment in the multimedia product was expended in dealing with intellectual property
issues. In its ‘Follow-Up to the Green Paper on Copyright and Related Rights in the Information
Society’ the European Commission has estimated that: “The market for copyright goods and
services ranges Community-wide form between 5% and 7% of the Gross National Product
(GNP). This market is comprised of large variety of products and services, containing protected
subject matter, ranging form traditional products, such as print products, films, phonograms,
graphic or plastic works of art, electronic products (notably computer programs) to satellite and
cable broadcasts..”11.
Whilst, managing intellectual property rights is very complex and time consuming for those who
wish to remain within the law, the ease with which digital information may be copied renders the
owners copyright in literary, artistic and musical works venerable to the making and
dissemination of unauthorized copies of a work in electronic format
6
Annie George, Copyright and the Internet. Chartered Secretary, May 1999, Pg.245
W.R. Cornish, Intellectual Property, Chapter 9, Sweet&Maxwell, 1989 Pg.245
8
Katsh, supra note 3, at 173-74.
9
Id. at 174.
10
Section 14, The Copyright Act 1957, see also 17 U.S.C. § 101 (1994)
11
Parag Diwan , Shammi Kapoor, Cyberlaw and E-Commerce Law, 2nd Edt. 2000, Pg. 139
7
LEGAL PROTECTION OF COMPUTER PROGRAMMES
Considering the extent to which computer programmes and communication software are
growing in market size and economic value, the nature of protection to be provided is extremely
important. Software is easily reproducible and can be copied cheaply. It can easily be converted
from one computer language to another. Even where direct copying is not possible, resourceful
computer programmers and engineers can often reverse engineer the programmes. The National
Commission on New Technological Uses of Copyrighted works (CONTU) in the U.S. conducted
an early expert advisory study. The commissioner, John Hersey had pointed out that programmes
were quite unlike literary works and also foresaw the derivative works problem reflected in the
“look and feel” spheres.12
Intellectual Property Law has presented problems for new technologies such as
computer programmes. The law assumes that something is either a writing (protected through
copyright) or a machine (protected by patent) but not both simultaneously. However computer
programmes have aspects of both authorship and invention. Besides Software is not a single
monolithic entity, but can be broken up into several components with varying degrees of
intellectual and innovative content. Different forms of Intellectual Property Rights protection are
appropriate for the individual components. Such Problems lead one to question the applicability
of Intellectual Property Law altogether.
U.K. Legislations
In the United Kingdom the Copyright Act 1956 made no mention of computers or computer
programmes. The Copyright, Designs and Patents Act, 1998 protects computer programmes
irrespective of the way they are stored. Computer programmes are protected by the definition of
“writing”, which includes “any form of notation or code, whether by hand or otherwise and
regardless of the method by which, or the medium in which, it is recorded.” The Copyright,
Designs and Patents Act, 1998 contains provisions dealing with “computer generated works”.
Because a computer generated work is not created by a human, there are special rules for
determining authorship and duration of copyright.
Although the 1998 Act remains the major statute in U.K. in copyright field, a
measure of reform has been introduced pursuant to the requirements of the EC’s directive on the
Legal Protection of Computer Programmes. 13 Effect has been given to the directive’s
requirements by the Copyright (computer Programmes) Regulations 1992 14 , which make a
number of amendments to the text of the 1998 Act.15
European Community Initiative
The European Community undertook, in the late 1980’s, to develop a policy concerning
intellectual property protection for computer programmes to which member nations should
harmonies against unauthorized copying their laws. The final EC directive, published in 1991
(later amended in 1993), endorses the view that computer programmes should be protected under
member states’ copyright laws as literary works and given at least 50 years of protection against
unauthorized copying. The inclusion in another programme of information necessary to achieve
J.H.Barlow, “Adapting the Intellectual Property System To New Technologies”, Wallerstein, et al (Eds), Global
Dimensions of Intellectual Property: Rights In Science And Tchnology,1993,p263
13
OJ 1991 L 122, Pg. 42.
14
SI 1992/3233.
15
Ian J Lloyd, Supra note 12 at Pgs. 377-378.
12
interoperability seems, under the final directive, to be lawful. The directive contains no exclusion
of such things as procedures, methods of operation and systems as the US statute provides. The
EC thus adopted its own sui generis approach through the latest directive.16
In July 1995, the EC Published a green paper entitled “Copyright and related Rights in the
Information Society”. The paper highlights development of the Information Society in Europe,
including the information superhighway will require harmonization of Intellectual Property laws
to ensure that right holders will make the material available while balancing the interests of the
users. The Green Paper identifies certain issues that are the key to the application of copyright to
the new technology. These include a number of legal issues, including the identification of the
author, the applicability of the traditional concept of ‘fair use’ and the scope of exclusive rights
giving the right to prohibit explanation of the work.
It seeks to harmonize the copyright law applicable to database structures, whatever from online
or off-line (CD-ROM etc.). It also envisages the introduction of a new economic right, sui
generis, which would protect the substantial investments of data base makers.
U.S. Position
In the United States of America the Copyright Act of 1976 did not expressly list computer
programmes as works of authorship. In 1980, the Act was amended by adding a definition of
“computer programme”. It also laid down exceptions to the normal prescriptions against
copying. The scope of these sections has been delineated by the courts. In Apple Computer, Inc
V. Franklin Computer Corp.,17 it was held that Copyright Act extends to operating programmes
as well as application programmes, whether fixed in source code or object code or embodied in
read only memory (ROM).
However the court in Whelan Associates, Inc. V. Jaslow Dental Laboratory, Inc. 18
created a relatively broad definition for copyrightable subject of software: everything that is not
necessary to the computer programme’s purpose or function, including its “structure, sequence
and organization.” In 1992, the Second Circuit Federal Court of Appeals decided Computer
Associates Int’l V. Altai, Inc. 19 , which specifically rejected the simplistic test regarding the
scope of copyright protection formulated in Whelan. In Computer Associates, the court
developed a three-part test for determining whether software is infringed under the copyright
laws. The test, which has come to be known as the “abstraction/filtration/ comparison” test.
Further, the U.S. Digital Millennium Copyright Act, 1998 seeks to implement the WIPO
Copyright Treaty, 1996 and to provide limitations on the copyright liability relating to material
online. This Act allows invention of new technological devices that when added to the computer
systems detect and stop infringement of the copyright. It is fairly comprehensive in the sense that
it deals with the law enforcement and intelligence activities, and also with copyright
management integrity. It deals with both the theoretical and practical aspects of the subject. It
acts as a practical working model. Further the Internet Copyright Infringement Liability
Clarification Act, 1998 specifically states limitations on the liability for internet copyright
infringement. The Act seeks to amend the U.S. Copyright Law to include copyright and the
limitations on the Internet copyright.
16
At <http://europa.eu.int/scadplus/leg/en/s06020.htm>
714 F.2d (3rd Cir.,1983)
18
797 F.2d 122 (3rd Cir., 1986).
19
982 F. 2nd 693 (2ndCir.,1992)
17
Universal Copyright Convention
Under this treaty, each member state grants the same protection to works (whether published or
not) of nationals of, and to works first published in, any other member state as it grants to its
nationals for works first published in its territory or to unpublished works created within its
territory. This is called "national treatment." Thus, software created by a U.S. author or first
published in the United States is protected in a convention member country to the extent that the
member's current copyright statute protects software. The UCC provides that any member
country that requires, as a condition of copyright protection, compliance with formalities (such
as registration, deposit or notice) must treat such formalities as satisfied if all published copies of
a work bear the symbol "©," the name of the copyright proprietor and the year of first
publication. This provision applies, however, only to works that (i) were first published outside
the country requiring the observance of the formalities, and (ii) were not authored by one of that
country's nationals. In contrast to Berne, formalities such as registration are permitted under the
UCC in order to bring an infringement suit.
Berne Convention
Berne Convention members constitute a union that is open to all countries of the world, provided
that certain minimum protective requirements are satisfied. These requirements include (i)
national treatment (whether or not a work is published), (ii) the granting of certain moral rights
to authors with regard to the exploitation of their works, (iii) the granting of certain "economic
rights" (such as exclusive rights of translation, reproduction, performance or adaptation with
respect to protected works) and (iv) the adoption of certain minimum terms of protection
(generally the life of the author plus 50 years) for various works. In addition, Berne Convention
provides copyright protection without requiring that any formalities, e.g., prerequisites to
bringing infringement suits, be observed. Berne Convention does not prevent a country from
providing evidentiary benefits as an incentive to registration such as in the United States. Some
commentators interpret Berne Convention as prohibiting the waiver or assignment of the "moral
rights" of the author. As a practical matter, however, national law appears to govern whether
"moral rights" may be totally waived, transferred or are applicable to a particular type of work
such as software.
The WIPO Copyright Treaty of 1996 is a special agreement to the Berne Convention and
requires compliance with Berne Convention. This treaty makes explicit that computer programs
are protected as literary works under Berne. It also states that compilations of data for which the
selection or arrangement of the contents are sufficiently original are protected as compilations.
Software makers are granted a right to control rentals of computer programs.
Practical Variations
Among the countries where subject matter protection exists for software, there are
substantial differences in the laws and regulations governing protection. For example, the
author of a "U.S. origin" work who desires to file suit for copyright infringement in the
United States must first register the work with the U.S. Copyright Office. Most other
countries do not require that their nationals take such action prior to filing copyright
infringement actions. In some countries, registration provides certain evidentiary benefits.
Indian Scenario
The India Copyright Act, 1957 specifically protects computer programmes. The meaning of
Copyright with respect to computer programmes is included under section 14 of the Act. The
provisions of the Act such as those relating to first owner, author, etc., also apply to the computer
programmes. Another provision of the Act is Section 40, relating to the extending of Copyrights
to Foreign Works, which is relevant due to the increasing access of the internet in the country.
The powers endowed on the copyright law enforcement authorities are designed to enforce
speedy action and redressal. Under the law, any police officer, not below the rank sub-inspector,
may, if he suspects that a copyright offence is being perpetrated, seize, without warrant all the
copies of the work, and all plates used for the purpose of making copies of the work wherever
found. He should produce them before a magistrate as soon as possible. In the eventuality of the
infringement being reported, the courts are empowered to the grant the following relief:
 Temporary and permanent injunction
 Impounding and destruction of all infringing copies, including master copies
 Actual monetary damages plus infringer’s profits;
 Statutory damages
 Court costs and reasonable attorney’s fees.
The offenders, in the past almost always used the slow pace of judicial system to good
effect. But the authorities have started using an effective weapon to deal with this problem with
the Anton Piller action order. An Anton Piller order cab authorize the commissioner to seek
police assistance, break locks, enter the premises of the suspected counterfeiter and assist in
identifying the infringing goods. This has dramatically improved results as the infringers quickly
come forward to settle the case with the Copyright owner. These civil orders provide quick relief
to the petitioner and provide and additional enforcement avenue to protect Intellectual Property
Rights.
Information Technology Act 2000
Seen form the laws of Copyright, the Information Technology Act 2000 does not lay
down any concrete frame work for dealing with specific Copyright violations on the internet.
The inability of the Act to address copyright issues in proper detailed manner, has been criticized
as one of its most glaring lacunas. However there are provisions that can be construed to be
seeking to address some aspects of copyrights as is obvious from section 43 which relates to
penalty for damage to computer, computer system, etc. Besides there is section 79 of the I.T. Act
that favors for limited liability of the Network Service Providers for violations committed by
their clients, so long as there was absence of knowledge as well as due diligence on the part of
the Service Provider.
Hence while generally, the issue of copyright violation comes under the purview of the
Copyright Act, which will also cover copyright violations on the Internet. But looking at the
provisions of the IT Act, it can be said that there has been some piecemeal effort made to deal
with the possible copyright infringement on the Internet. The text of Section 43 provides as
follows:
“If any person without permission of the owner or any other person who is in charge of a
computer, computer system or computer network, —
(b) 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 not exceeding one crore rupees to the
person so affected.”
Secondly there is section 79 under chapter XII of the I.T. Act 2000 that adumbrates that
“no person providing any service as a network service provider shall be liable under this Act,
rules or regulations made there under for any third party information or data made available by
him if he prove that the offence or contravention was committed without his knowledge or that
he exercised all due care and diligence to prevent the commission of such offence or
contravention.” This means that intermediaries such as ISP’s cannot be forced to enter into
agreements contrary to this provision, or contracts that increase the level of responsibility cast on
them by this provision. Any such agreement will be void ab initio as section 79 is not subject to a
contract to the contrary. Thus the normal principal laid down is that the ISP are liable for any
third party information and data made available by them.
Thus cases involving copyright infringement on the internet are only beginning to work
their way through the court system, even in the U.S.A. As the above cases demonstrate, whether
the issue is as basic as originality, or as complex as indirect liability, the current Copyright Act is
capable of being applied to cyberspace. This will hold true for Indian Copyright Laws also
because of their similarity to corresponding U.S. laws. Though the method of infringement is
new, if the courts adhere to the fundamental principles of copyright law, there should be no
problem applying existing law to the internet. While many have made the argument that existing
copyright laws are inadequate and should be amended to welcome digital technology, the
language of the Copyright Act is broad and can accommodate the problems posed thus far by the
internet.
CONCLUSION
Although the availability of legal protection for software is increasing rapidly around the
world, the scope and enforceability of that protection varies significantly by country. The use of
the Special provisions have resulted in greater protection for software, as well as other
intellectual property, in several countries. The Business Software Alliance and Software
Information Industry Association have been effective forces for monitoring software piracy
around the world, promoting legislative and attitudinal changes and taking legal actions to
enforce copyright protection. The accession of countries to the Berne Convention, the NAFTA
provisions and the signing of GATT and GATS indicate that the trend is toward multilateral
agreements for dealing with protection for software. These multilateral efforts are intended to
promote adequate and effective protection of intellectual property rights while ensuring that
national laws enforcing such rights do not themselves become barriers to trade.
The analysis in this paper brings forth the fact there is undoubtedly a very strong regime
that protects computer software, off-line, but this existing regime fails miserably when faced
with the problems that the internet throws up. The issue that arises is whether one wants to
extend the existing intellectual property to the internet or let the internet find the solution for
itself, as it has in certain cases, with concepts like shareware, copylifting etc. Alternately, should
there be a new system of law that should govern intellectual property on the internet?
The question then is whether to enact a whole new system of laws that deal with internet in
particular or to modify the existing regime. The enactment of new system of laws dose has its
supporters, especially among the software lobby, but it poses certain problems. It would also
mean the creation of whole new system to enforce these laws. Moreover, this would lead to the
destruction of the very concept for which the internet has been created, that is, the freedom of
information.
Therefore, one will have to look into the other option and see as to how one can modify
the existing regime that deals with the protection of software. The Americans were the first to
actually enact a series of laws that put this idea into motion. These legislations empower the
American copyright laws to take into account the internet. Numerous other jurisdictions have
followed this lead. Thus the juridical concerns of Copyright and Information Technology
shrouds in uncertainty, raises conflicts and creates tensions in the existing legal regime. The
present legislative scheme does not have specific chapters on the piracy of computer software
form the internet. The Copyright and the I.T legislations are at times regarded as myopic in
approach. At the best they take care of the problems of off-line piracy.
Some of the Jurists opined that the existing principles of copyright may be applied to the
internet through analogy and deductions. In view of the super sonic development of information
age and legal expediencies such juristic pessimism is not tenable. Thus there is need of radical
overhauling of Copyright and I.T. legislations specially the conceptual ambit, contents of rights
and liability redressal.
Bibliography
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Faizan Mustafa, “Copyright Law: A Comparative Study” 6 (1998)
Supra Note 1 at 121
Parag Diwan , Shammi Kapoor, Cyberlaw and E-Commerce Law, 2nd Edt. 2000, Pg. 139
Section 14, The Copyright Act 1957, see also 17 U.S.C. § 101 (1994)
Ibid
David J. Loundy E-LAW 4: Computer Information Systems Law and System Operator Liability, Published
in the Seattle University Law Review, Volume 21, Number 4, Summer, 1998
Annie George, Copyright and the Internet. Chartered Secretary, May 1999, Pg.245
W.R. Coriush, Intellectual Property, Chapter 9, Sweet & Maxwell, 1989 Pg.245
M. Ethan Katsh, Law in a Digital World: Computer Networks and Cyberspace, 38 Vill. L. Rev. 403, 413
(1993).
See Sony Corp. v. Universal Studios, Inc., 464 U.S. 417, 430-31 (1984)
Act for the Encouragement of Learning, 1709, 8 Anne, ch. 21 (Eng.).
Katsh, supra note 10, at 173-74
Douglas J. Masson “Fixation on Fixation: Why Imposing Old Copyright Law on New Technology Will
Not Work” 1996, Indiana University School of Law-Bloomington
Katsh, supra note 3, at 173-74.
Id. at 174.
499 U.S. 362
J.H. Barton, “Adapting the Intellectual Property System to New Technology” Wallerstein et al (Eds.)
Global Dimensions of the Intellectual Property: Rights in Science And Technology, Pg 263 (1993)
Article 2(1) “The Berne Convention” 1971
Ibid Article 2(5)
J.H.Barlow, “Adapting the Intellectual Property System To New Technologies”, Wallerstein, et al (Eds),
Global Dimensions of Intellectual Property: Rights In Science And Tchnology, 1993,p263
P. Samuelson, “A Case Study On Computer Programmes”, Wallerstein Et. Al. (Eds.), Global Dimensions
of Intellectual Property: Rights In Science And Tchnology, 1993,p295
At <http://europa.eu.int/scadplus/leg/en/s06020.htm>
714 F.2d (3rd Cir, 1983)
797 F.2d 122 (3rd Cir. 1986)
John Croome, Reshaping the World Trading System: A History Of The Uruguay Round (1996)
Article 9 to 40, The TRIPS Agreement 1995
Article 5, WIPO Copyright Treaty 1996
Ibid. Article 8
Supra Note 21
Section 2(d)(IV) The Copyright Act 1957
86 F.3d 1447 (7th Cir. 1996) at <http://www.law.memory.edu/7circuit/june96/96-1139.html>
499 U.S. 36