COPYRIGHT LAW ENFORCEMENT
BY
JUSTICE M. JAGANNADHA RAO
The Seminar on ‘Ensuring Proper & Effective Enforcement of
Copyright’ here at Delhi University that is being held today, the 20 th March,
2004 will be considering various aspects of Copyright enforcement.
I was speaking two years ago at this University in a Seminar
organized by the Faculty of Law and made the following concluding
remarks about today’s challenges in copyright law arising out of the
technology revolution and in particular the ‘internet’ which today enables
extraordinary violation of copyright law. I said:
“Some say that Internet has sounded the death-knell of copyright. But
others say that copyright has remained flexible and that the
technological changes right from Queen Annes’ Act of 1710 have
been assimilated into the system by way of ‘fencing technologies’.
Since Internet is a global phenomenon, it is felt that there must be
harmony in the laws of all countries. There should not be hasty
domestic legislation before the ‘nature of the best’ is understood. Nor
could there be undue delay which could be confused with ‘legal
impotence’. As pointed out by the U.S. District Court for the Central
District of California in Playboy Enterprises vs. Netscape and Excite
(1999) 55. F 2d. Suppl. 1070), too much of disharmonious legislation
could create difficulties for the Courts as the Courts are “mindful of
2
the difficulties of applying well-established doctrines to what can only
be described as an amorphous situs of information, anonymous
messenger of communication and seemingly endless streams of
commerce.”
A refrain in the several conferences organized in India, is that there
are serious breaches of copyright in our country and enforcement is poor. I
may hasten to point out that this problem is not peculiar to India alone. In
this context I wish to refer in some detail about the experience in Australia.
In Queensland, Australia, the Department of Employment, Training and
Industrial Relations has advised that there has been widespread anecdotal
evidence of copyright infringement within the vocational education and
training sectors. This Australian Copyright Council has stated that the level
of copyright infringement and commercial piracy in Australia is of concern
and that Government policy and resources must be directed towards
reducing these levels. It pointed out that there was an erroneous perception
among the law enforcement agencies that copyright infringement was
primarily a matter for copyright owners alone.
However, intellectual
property rights, including copyright, are viewed differently from other
categories of property rights. It pointed out that, in fact, such breaches
adversely affect consumers, employment, government revenue and gross
domestic production. Enforcement is of utmost importance to industries
such as music, book publishing and film industries.
The long-term
sustainability of these industries depends upon effective protection from
infringement of the intellectual property rights they own.
3
The Report of the Australian Copyright Council pointed out that the
main reason for infringement in Australia was the lack of resources and
expertise in this area. Further, even when prosecutions succeed, meager
fines are imposed such as $500 for piracy where 1000 CDs were seized in an
offer to supply 20,000 CDs. In another case of 32 counts, the fine was $200.
The Music Industry Piracy Investigation and Motion Pictures Association
recommended that a Committee consisting of enforcement officials and the
industry be set up to co-ordinate intelligentsia. In 1997, the Australian
Federal Police (AFP) proposed the establishment of a committee consisting
of representatives from the intellectual property industries, the AFP and
Customs Department.
It was felt that federal and state agencies must
exchange information. In November 2000, the House of Representatives of
the Commonwealth of Australia published a very exhaustive Report on
Copyright infringement and methods to crack down on copycats. However,
in February 2000, the government indicated that the recommendations were
not likely to be adopted in the near future.
The serious nature of these violations can be gauged by reference to
the extent of revenue lost by copyright owners due to private copying. The
losses in various countries, as long back as in 1991, were as follows (in US
dollars): France $100.50 million; Germany $ 70.00 millions; Finland $11
million; Australia $10.40 million; Hungary $ 0.66 million; Iceland $0.44
millions.
It appears that convergence of technology resulting in devices that can
simultaneously receive and duplicate copyright material well lead to increase
in the level of this type of infringement.
4
New solutions being implemented are encryption, enabling owners to
directly licence duplication of copyright material. The process of ‘blankrecording of media levy’ is being adopted in many countries, under which a
levy is paid on blank recording media or recording equipment either by the
manufacturer or by the wholesaler, retailer or consumer to a collecting
society which distributes the money to owners of copyright in material
copies. In some countries, it is proposed to ban commercial dealings in
devices able to be used to circumvent effective technological protection
measures. This is required under Art. 11 of the WIPO treaties. In certain
cases copyright owners are using contractual agreements governing use of
material purchased in electronic form to override fair-dealing and other
exceptions set out in copyright legislation.
Copyright owners are
increasingly looking to technological protective measures, such as ‘locks’
for protection of their material, particularly in the digital, on-line
environment. For on-line environment, such protective measures are the
equivalent of locked doors and security guards. But technological measures
can be overcome, just as warehouses can be broken into. Further, those
measures do not apply to copies of material available in non-digital form.
In this context I may mention a very important Report on Cybercrimes
which has impact on Copyright. Recently the Department of Information
Technology, Government of India recently constituted an expert committee
to examine the Information Technology Act 2000 and other related laws
with a view to finding out the existing shortcomings. This was thought
necessary since “developments at the global level needed harmonization
with Indian Information Technology Act 2000 for a secure and trusted e-
5
society”. The Committee has since submitted its report on various aspects
including authentication by asymmetric cryptosystem, cyber crimes
including cyber stalking, theft and sending of obscene and pornographic
material, definition of `traffic data’, use of the device of encryption for
securing e-data, rights of network service providers, cyber squatting and
cyber ethics. This is but indicative of the new frontiers being explored in the
context of the changing dimensions of information technology.
The following is the survey of the 15 important recommendations of
the Committee:
(1)
At present, section 3(2) of the IT Act, 2000 prescribes the case of a
symmetric crypto-system and hash function for authentication of
electronic records, thus rendering the Act technology specific but
in view of the UNCITRAL E-Signature Act, requiring that law
should be technology non-specific, or provision be added in the
Act to authorize Government to notify any new technology in
future for purpose of authentication of electronic record.
(2)
More than creation of offences, capacity building among police
personnel and Judges of the trial Courts is important. A thorough
analysis of existing provisions of the Indian Penal Code and other
special laws should be made, to the extent they can apply to
criminal conduct in cyber space. It can then be considered whether
a separate law should be made. For the present, the IPC can be
amended. While adopting from foreign legislations, we should
bear in mind the limitations and difficulties to which our police
and magistracy are subject. Till a new law is made, the IT Act,
6
2000 can be strengthened to promote e-commerce and egovernance and new offences can be added in that Act also.
(3)
On the issues of jurisdiction in cyber-space law, section 4 should
be amended. There are two approaches (1) Incorporating extraterritorial jurisdictional powers within various person laws. (This
can be difficult) or (2) Amending of IT laws by providing a general
provision for application of IT laws to crimes not specifically
mentioned in the IT Act, in the manner done in Singapore under
section 4 of the Computer Misuse Act, 1993.
(4)
On the lines recommended by the Council of Europe’s Convention
on Cyber crimes, section 2A (definition) of IT Act should be
amended to include the definition of ‘traffic data’ relating to
communications by means of a computer system that formed part
of a chain communication, so as to prevent vulnerability of data in
transit. The proposal would require the specification of the origin
and destination of the communication, its soul, time, date, size,
duration, or type of underline services. It is proposed to amend
section 66 of the IT Act, 2000 to protect ‘information in transit’.
(5)
For purposes of section 70 of the IT Act, 2000, it is necessary to
define ‘protective systems’ and evolve criteria for that purpose
identifying various technologies,- especially with respect to
security which such system has to implement to reduce their
vulnerability.
It is also necessary to identify and standardize
communication protocols based on which protected systems would
communicate with other protected systems and/or non-protected
systems.
7
(6)
(a) The Central Government should acknowledge the case of
encryption and the technologies for security of data for egovernance and e-commerce subject to conditions, reserving the
right to regulate the use of these technologies for security data, by
way of encryption rules and regulations. (b) Section 69(2) be
made more generic and not be restricted to encryption.
The
proviso should require the subscriber or any person in-charge of
the computer-source to extend all facilities to decrypt or provide
access to computer resource containing such information, when so
directed under section 69(1).
(7)
In order to balance investigation on the one hand and internet
privacy on the other, the approach of the Council of Europe’s
Convention on Cyber crimes be followed for interception,
preservation and disclosure of data which is (traffic data,
(b)
content data and (c) subscriber’s data which is stored or is in the
process of communication. This requires mandatory preservation
of subscriber’s data by ISPs, retention of traffic data by ISPs for a
specified period, presentation of content data. Power to be vested
in an authority to balance privacy of person and power to initiate
preservation of data should be subject to judicial review. Powers
for ordering disclosure of content data should vest in a separate
administration/quasi-judicial authority. This will balance rights of
the individual against demands of the Law Enforcement Agencies.
Section 79 of the IT Act provides for cases in which network
server provides and intermediaries are liable. A separate chapter
has to be added on the lines of the US Digital Millennium
8
Copyright Act, 1998, the Communication of Decency Act, and
laws in Germany and Netherlands.
(8)
Since privacy interests in Content data are higher as compared to
traffic data, stricter criteria can be applied in respect of content
data in two ways – (a) limiting the power to higher levels
(judicial/administrative/law enforcement) offices and (b) limiting
the power only to senior specified categories of cases only – on the
lines of the US Patriot Act. Section 69(1) of the IT Act, 2000 can
be amended enabling the Central or State Governments, to direct
any agency of Government to intercept or cause to be intercepted,
monitor or cause to be monitored, any information transmitted
through any computer source, if it is necessary for purpose of Act
19(2) of the Constitution of India or for preventing incitement to
the commission of any cognizable offence.
(9)
It is proposed to deal with (A) ‘Identity Theft’ which inhibits ecommerce as it involves fraudulent use of any individual’s
personal identifying information, such as his social security
number, bank account
I shall finally refer to the development needs of developing and poor
nations. The British Government in May 2001 constituted a Commission on
Intellectual Property Rights to consider, inter alia, “how national IPR
regimes could best be designed to benefit developing countries within the
context of international agreements, including TRIPS”. The Commission
was chaired by Prof. John Barton of Stanford University and its members
included Prof. R. Mashelkar, DG, CSIR and other experts. The members
visited developed countries as well as countries in Africa and Asia. The
Commission submitted its Report on ‘Integrating Intellectual Property
9
Rights and Development Policy’ in September 2002. In the foreword of the
said Report, it is stated that while developing countries want more IPRs for
good business, the developing world believes that IPRs are likely to cripple
the development of local industry and technology and will harm local
population and benefit more except the developed world and TRIPs has
increased inequalities.
The developed world is able to adjust itself to
disadvantages from IPRs and has the economic strength and established
legal mechanism to overcome problems.
The advantages of IPR give
developed countries more wealth. The Committee recommended that higher
IPR standards should not be pressed upon developing countries without a
serious and objective assessment of its impact on development. IPRs have,
it says, been regard as ‘good’ for rich countries and ‘poison’ for poor
countries. The impact of IP policies on poor people will also vary according
to socio-economic circumstances. What works in India, will not necessarily
work in Brazil or Botswana. The Report says that the ‘fair use’ or ‘fair
dealing’ provisions have not met the needs of developing countries,
particularly in the field of education. Stronger protection and enforcement,
the Report says, will reduce access to knowledge-related products in
developing countries, with potentially damaging consequences for poor
people. For instance, the cost of software is a major problem in developing
countries, and is “the reason for the high level of illicit copying”. Copyright
can also be a barrier to the further development of software which is
specifically adapted to local needs and requirements”. It says:
“Access to internet in developing countries is limited, although
growing rapidly in most countries.
But the internet provides an
unrivalled means of low cost access to knowledge and information
10
required by developing countries, when their access to books and
journals is severely restricted by lack of resources.
But the
application of copyright rules to the internet is problematic. A historic
‘fair use’ rights may be restricted by forms of technological
protection, such as encryption, which restricts access even more
stringently than copyright. In the USA, recent legislation (the Digital
Millennium Copyright Act) forbids the circumvention of such
technological protection, even when the purpose of circumvention
does not contravene copyright laws. The EU has introduced a special
form of protection of databases (the ‘Database Directive’) which
rewards investment in the creation of databases, and which may
restrict access to data by scientists and others, including in developing
countries. The 1996 WIPO Copyright Treaty contains elements which
may restrict the access of developing countries to information.”
The Report makes very important recommendation for the betterment of
people in developing countries, as follows:
“Publishers, including those on-line, and software producers should
review their pricing policies to help reduce unauthorized copying and
to facilitate access to their products in developing countries.
Initiatives being undertaken by publishers to expand access to their
products for developing countries are valuable and we encourage an
expansion of such schemes. The extension of free on-line access
initiatives for developing countries to cover all academic journals is a
good example of what could be done.
11
In order to improve access to copyrighted works and achieve their
goals for education and knowledge transfer, developing countries
should adopt pro-competitive measures under copyright laws. They
should be allowed to maintain or adopt broad exemptions for
educational, research and library uses in their national copyright laws.
The implementation of international copyright standards in the
developing world must be undertaken with a proper appreciation of
the continuing high level of need for improving the availability of
these products, and their crucial importance for social and economic
development.
Developing countries and their donor partners should review policies
for procurement of computer software, with a view to ensuring that
options for using low-cost and/or open-source software products are
properly considered and their costs and benefits carefully evaluated.
In order that software can be adapted to local needs, developing
countries should end=sure that their national copyright laws permit
the reverse engineering of computer software programmes, in ways
that are consistent with relevant international treaties which they have
signed.
Internet users in developing nations should be entitled to fair use
rights such as making and distributing printed copies from electronic
sources in reasonable numbers for educational and research purposes,
and using reasonable excerpts in commentary and criticism. Where
suppliers of digital information or software attempt to restrict “fair
use” rights by contract provisions associated with the distribution
12
digital material, the irrelevant contract provision may be treated as
void. Where the same restriction is attempted through technological
means, measures to defeat the technological means of protection in
such circumstances should not be regarded as illegal.
Countries
should also not follow the lead of the US and the EU by implementing
legislation on the lines of the DMCA or the Database Directive.”
With every discussion and Seminar on Copyright laws one is
constantly reminded of, to modify the known adage, “the little known and
the vast unknown”. That perhaps underscores the need to regularly hold such
seminars and engage ourselves in meeting the challenges that this vast and
changing field poses.
I once again thank all of you and the organizers in particular for the
opportunity to address this seminar.
13
COPYRIGHT LAW ENFORCEMENT
(Osmani University)
BY
JUSTICE M. JAGANNADHA RAO
The National Seminar on ‘Enforcement of Copyright Law’ held here at
Hyderabad yesterday, (the 13th March 2004) and today is now coming to a
close with this valedictory session. I congratulate the Department of Law,
Osmania University, Hyderabad for organizing this seminar. The number of
topics discussed at the Seminar, both this and the previous one held on
January 11th this year, reveals how vast a subject Copyright Law is. At the
first Seminar the following themes were discussed: (1) protection and
Enforcement of Copyright; Neighbouring Rights, Enforcement and
Protection of Copyright in Digital Era and Energy Issues and Challenges –
The themes so far as the present seminar is concerned are (1) Protection of
Cultural Industrial Property Rights and Neighbouring Rights – with
emphasis on Broadcast Reproduction Rights, Rights in respect of Second
Recordings, Performed Rights, Copyright in Communication, Copyright in
Music and Cinematographic Works; (2)Protection of Copyrights –
Enforcement Mechanism with emphasis on the role of police authorities,
Copyright Societies, Copyright Board, Customs and other authorities; (3)
Enforcement of Copyrights – Legal and Jurisdictional issues with emphasis
on application of relevant laws (like the law of Contract, Torts, Criminal
Law, IT Law etc., Territorial Protection, Competent For a and International
Copyrights; and (4) Strategies for Effective Enforcement of Copyright, with
emphasis on adequacy and effectiveness of existing remedies, fair use/fair
14
dealing, adequacy of law and need for change and need for specialized
Courts/Tribunals.
The motivation behind the organization of these Seminars with the support
of the Ministry of HRD, Government of India, New Delhi has been wellstated as follows in the brochure of the seminar as follows:
“The advent of science and technology has resulted in creation of new
kinds of IP and also new species of works that can be protected under
the Copyright Law. At the same time, the technological advances
have also made the protection of Copyright difficult, if not impossible,
as it is now possible to copy, replicate and transfer the information in
any copyrighted work, without any punishment from the author/owner
of such works. The international as well as national legal regimes are
being overhauled, updated and modified to meet these challenges. In
spite of strong IP regimes, there have been complaints about the largescale infringement of copyrighted works in various forms mostly due
to the digital technology. Various sections of the society suffer due to
ineffective protection of copyright including authors, publishers,
musicians, photographers, information technology companies, film
industry and performers. The players involved in copyright protection
are corporate sector, authors and owners etc. of copyrighted works,
the copyright authorities and the law enforcement machinery
including police, lawyers and Courts.”
I was speaking two years ago in Delhi in a Seminar organized by the Faculty
of Law, Delhi University and made the following concluding remarks about
15
today’s challenges in copyright law arising out of the technology revolution
and in particular the ‘internet’ which today enables extraordinary violation
of copyright law. I said:
“Some say that Internet has sounded the death-knell of copyright. But
others say that copyright has remained flexible and that the
technological changes right from Queen Annes’ Act of 1710 have
been assimilated into the system by way of ‘fencing technologies’.
Since Internet is a global phenomenon, it is felt that there must be
harmony in the laws of all countries. There should not be hasty
domestic legislation before the ‘nature of the best’ is understood. Nor
could there be undue delay which could be confused with ‘legal
impotence’. As pointed out by the U.S. District Court for the Central
District of California in Playboy Enterprises vs. Netscape and Excite
(1999) 55. F 2d. Suppl. 1070), too much of disharmonious legislation
could create difficulties for the Courts as the Courts are “mindful of
the difficulties of applying well-established doctrines to what can only
be described as an amorphous situs of information, anonymous
messenger of communication and seemingly endless streams of
commerce.”
I wish to briefly recapitulate the salient features of our law although you
must have elaborately discussed certain key provisions of the law in the past
couple of days. The Indian Copyright Act, 1957 was amended in 1984, 1994
and 1999. While the 1984 amendments attempted to prevent piracy, the
1994 amendment covered the areas of protection of performer’s right,
copyright societies, assignment of copyrights by authors and artists,
16
protection of computer programmes, cinematography of films and sound
recordings; the 1999 amendments amended the definition of literary work,
the meaning of copyright in respect of computer programmes, and increased
the term of copyright of performers from 25 to 50 years. After the 1999
Amendments, further technological developments posed new challenges to
copyright. To deal with certain aspects arising out of the latest innovations
in information technology, Parliament enacted the Information Technology
Act, 2000. That Act made important amendments to the Indian Penal Code,
the Indian Evidence Act and the Code of Criminal Procedure, but did not
amend the Copyright Act, 1957 further.
Sections 51 to 53 of the Copyright Act, 1953 deal with ‘Infringement of
Copyright’, sections 54 to 62 with ‘Civil Remedies’, sections 63 to 70 refer
to various ‘offences’ which result in different punishments. Section 53
refers to administrative remedies. As you are all probably aware, India has
not yet become party to the WIPO Copyright Treaty 1996 and WIPO
Performer and Programmes Treaty 1996, though some countries have
amended their laws to implement these treaties. The US has passed the
Digital Millennium Act, 1998.
There is a great deal that has been discussed in seminars and written in
various published articles and books about the defects in the Copyright Act,
1957. For example, it has been suggested that sec. 2(ff), be amended to
include ‘internet’, sec. 2(ffc) be amended to include ‘web pages’, sec. 2(hh)
be amended to include ‘Compact disc – writers, floppy drives and electronic
copying. It is said that the liability of ‘intermediate service providers’ (ISP)
be specifically stated instead of the general exemption given in the
17
Information Technology Act, 2000.
Questions have been posed as to
whether a provision be made permitting the copyright holder to direct the
service providers to remove the copyrighted matter from the network or to
prevent access to such material; should there be a remedy for the former if
the latter disobeys the directions of the former or what should be the remedy
of the latter if the directions to the service provider is false. There is no
provision dealing with new issues of territorial jurisdiction since the internet
is faceless and borderless. A further question that arises is whether sec. 13 be
amended to include ‘compilation of any form’?
Regarding ‘fair use’
doctrine, should there be a norm set as to what is the fair percentage of use?
In regard to digital technology, questions have arisen whether a limit granted
by the copyright holder in favour of another to publish the same in printmedia, will include making the work available on-line? If ‘idea’ is not
copyrightable to what extent is the ‘expression’ copyrightable? What other
provisions require to be made in respect of broadcasting, satellite
transmission, cable transmission, databases, distribution rights, fixation
rights, reproduction rights?
Section 65 of the IT Act deals only with
tampering of compilation source documents and sec. 79 with network server
providers’ liability. It must be noticed, however, that we have a host of
legislation in other developed countries on these aspects.
A refrain in the several conferences organized in India, is that there are
serious breaches of copyright in our country and enforcement is poor. I may
hasten to point out that this problem is not peculiar to India alone. In this
context I wish to refer in some detail about the experience in Australia. In
Queensland, Australia, the Department of Employment, Training and
Industrial Relations has advised that there has been widespread anecdotal
18
evidence of copyright infringement within the vocational education and
training sectors. This Australian Copyright Council has stated that the level
of copyright infringement and commercial piracy in Australia is of concern
and that Government policy and resources must be directed towards
reducing these levels. It pointed out that there was an erroneous perception
among the law enforcement agencies that copyright infringement was
primarily a matter for copyright owners alone.
However, intellectual
property rights, including copyright, are viewed differently from other
categories of property rights. It pointed out that, in fact, such breaches
adversely affect consumers, employment, government revenue and gross
domestic production. Enforcement is of utmost importance to industries
such as music, book publishing and film industries.
The long-term
sustainability of these industries depends upon effective protection from
infringement of the intellectual property rights they own.
The Report of the Australian Copyright Council pointed out that the main
reason for infringement in Australia was the lack of resources and expertise
in this area. Further, even when prosecutions succeed, meager fines are
imposed such as $500 for piracy where 1000 CDs were seized in an offer to
supply 20,000 CDs. In another case of 32 counts, the fine was $200. The
Music Industry Piracy Investigation and Motion Pictures Association
recommended that a Committee consisting of enforcement officials and the
industry be set up to co-ordinate intelligentsia. In 1997, the Australian
Federal Police (AFP) proposed the establishment of a committee consisting
of representatives from the intellectual property industries, the AFP and
Customs Department.
It was felt that federal and state agencies must
exchange information. In November 2000, the House of Representatives of
19
the Commonwealth of Australia published a very exhaustive Report on
Copyright infringement and methods to crack down on copycats. However,
in February 2000, the government indicated that the recommendations were
not likely to be adopted in the near future.
The serious nature of these violations can be gauged by reference to the
extent of revenue lost by copyright owners due to private copying. The
losses in various countries, as long back as in 1991, were as follows (in US
dollars): France $100.50 million; Germany $ 70.00 millions; Finland $11
million; Australia $10.40 million; Hungary $ 0.66 million; Iceland $0.44
millions.
It appears that convergence of technology resulting in devices that can
simultaneously receive and duplicate copyright material well lead to increase
in the level of this type of infringement.
New solutions being implemented are encryption, enabling owners to
directly licence duplication of copyright material. The process of blankrecording of media levy is being adopted in many countries, under which a
levy is paid on blank recording media or recording equipment either by the
manufacturer or by the wholesaler, retailer or consumer to a collecting
society which distributes the money to owners of copyright in material
copies. In some countries, it is proposed to ban commercial dealings in
devices able to be used to circumvent effective technological protection
measures. This is required under Art. 11 of the WIPO treaties. In certain
cases copyright owners are using contractual agreements governing use of
material purchased in electronic form to override fair-dealing and other
20
exceptions set out in copyright legislation.
Copyright owners are
increasingly looking to technological protective measures, such as ‘locks’
for protection of their material, particularly in the digital, on-line
environment. For on-line environment, such protective measures are the
equivalent of locked doors and security guards. But technological measures
can be overcome, just as warehouses can be broken into. Further, those
measures do not apply to copies of material available in non-digital form.
In this context I may mention that recently the Department of Information
Technology, Government of India recently constituted an expert committee
to examine the Information Technology Act 2000 and other related laws
with a view to finding out the existing shortcomings. This was thought
necessary since “developments at the global level needed harmonization
with Indian Information Technology Act 2000 for a secure and trusted esociety”. The Committee has since submitted its report on various aspects
including authentication by asymmetric cryptosystem, cyber crimes
including cyber stalking, theft and sending of obscene and pornographic
material, definition of `traffic data’, use of the device of encryption for
securing e-data, rights of network service providers, cyber squatting and
cyber ethics. This is but indicative of the new frontiers being explored in the
context of the changing dimensions of information technology.
I shall finally refer to the development needs of developing and poor nations.
The British Government in May 2001 constituted a Commission on
Intellectual Property Rights to consider, inter alia, “how national IPR
regimes could best be designed to benefit developing countries within the
context of international agreements, including TRIPS”. The Commission
21
was chaired by Prof. John Barton of Stanford University and its members
included Prof. R. Mashelkar, DG, CSIR and other experts. The members
visited developed countries as well as countries in Africa and Asia. The
Commission submitted its Report on ‘Integrating Intellectual Property
Rights and Development Policy’ in September 2002. In the foreword of the
said Report, it is stated that while developing countries want more IPRs for
good business, the developing world believes that IPRs are likely to cripple
the development of local industry and technology and will harm local
population and benefit more except the developed world and TRIPs has
increased inequalities.
The developed world is able to adjust itself to
disadvantages from IPRs and has the economic strength and established
legal mechanism to overcome problems.
The advantages of IPR give
developed countries more wealth. The Committee recommended that higher
IPR standards should not be pressed upon developing countries without a
serious and objective assessment of its impact on development. IPRs have,
it says, been regard as ‘good’ for rich countries and ‘poison’ for poor
countries. The impact of IP policies on poor people will also vary according
to socio-economic circumstances. What works in India, will not necessarily
work in Brazil or Botswana. The Report says that the ‘fair use’ or ‘fair
dealing’ provisions have not met the needs of developing countries,
particularly in the field of education. Stronger protection and enforcement,
the Report says, will reduce access to knowledge-related products in
developing countries, with potentially damaging consequences for poor
people. For instance, the cost of software is a major problem in developing
countries, and is “the reason for the high level of illicit copying”. Copyright
can also be a barrier to the further development of software which is
specifically adapted to local needs and requirements”. It says:
22
“Access to internet in developing countries is limited, although
growing rapidly in most countries.
But the internet provides an
unrivalled means of low cost access to knowledge and information
required by developing countries, when their access to books and
journals is severely restricted by lack of resources.
But the
application of copyright rules to the internet is problematic. A historic
‘fair use’ rights may be restricted by forms of technological
protection, such as encryption, which restricts access even more
stringently than copyright. In the USA, recent legislation (the Digital
Millennium Copyright Act) forbids the circumvention of such
technological protection, even when the purpose of circumvention
does not contravene copyright laws. The EU has introduced a special
form of protection of databases (the ‘Database Directive’) which
rewards investment in the creation of databases, and which may
restrict access to data by scientists and others, including in developing
countries. The 1996 WIPO Copyright Treaty contains elements which
may restrict the access of developing countries to information.”
The Report makes very important recommendation for the betterment of
people in developing countries, as follows:
“Publishers, including those on-line, and software producers should
review their pricing policies to help reduce unauthorized copying and
to facilitate access to their products in developing countries.
Initiatives being undertaken by publishers to expand access to their
products for developing countries are valuable and we encourage an
23
expansion of such schemes. The extension of free on-line access
initiatives for developing countries to cover all academic journals is a
good example of what could be done.
In order to improve access to copyrighted works and achieve their
goals for education and knowledge transfer, developing countries
should adopt pro-competitive measures under copyright laws. They
should be allowed to maintain or adopt broad exemptions for
educational, research and library uses in their national copyright laws.
The implementation of international copyright standards in the
developing world must be undertaken with a proper appreciation of
the continuing high level of need for improving the availability of
these products, and their crucial importance for social and economic
development.
Developing countries and their donor partners should review policies
for procurement of computer software, with a view to ensuring that
options for using low-cost and/or open-source software products are
properly considered and their costs and benefits carefully evaluated.
In order that software can be adapted to local needs, developing
countries should end=sure that their national copyright laws permit
the reverse engineering of computer software programmes, in ways
that are consistent with relevant international treaties which they have
signed.
Internet users in developing nations should be entitled to fair use
rights such as making and distributing printed copies from electronic
24
sources in reasonable numbers for educational and research purposes,
and using reasonable excerpts in commentary and criticism. Where
suppliers of digital information or software attempt to restrict “fair
use” rights by contract provisions associated with the distribution
digital material, the irrelevant contract provision may be treated as
void. Where the same restriction is attempted through technological
means, measures to defeat the technological means of protection in
such circumstances should not be regarded as illegal.
Countries
should also not follow the lead of the US and the EU by implementing
legislation on the lines of the DMCA or the Database Directive.”
With every discussion and Seminar on Copyright laws one is
constantly reminded of, to modify the known adage, “the little known
and the vast unknown”. That perhaps underscores the need to
regularly hold such seminars and engage ourselves in meeting the
challenges that this vast and changing field poses.
I once again thank all of you and the organizers in particular for the
opportunity to address this seminar.
25
COPYRIGHT LAW ENFORCEMENT
(Original)
BY
JUSTICE M. JAGANNADHA RAO
The National Seminar on ‘Enforcement of Copyright Law’ held here
at Hyderabad yesterday, (the 13th March 2004) and today is now coming to a
close with the valedictory session. I congratulate the Department of Law,
Osmania University, Hyderabad for organizing this seminar. There are a
vast number of topics available under Copyright Law. I note that this is the
second seminar organized by the University. The first one was held on 10th,
11th January, 2004 when the following themes were discussed: (1) protection
and Enforcement of Copyright; Neighbouring Rights, Enforcement and
Protection of Copyright in Digital Era and Energy Issues and Challenges –
The themes so far as the present seminar is concerned are (1) Protection of
Cultural Industrial Property Rights and Neighbouring Rights – with
emphasis on Broadcast Reproduction Rights, Rights in respect of Second
Recordings, Performed Rights, Copyright in Communication, Copyright in
Music and Cinematographic Works; (2)Protection of Copyrights –
Enforcement Mechanism with emphasis on the role of police authorities,
Copyright Societies, Copyright Board, Customs and other authorities;
Enforcement of Copyrights – Legal and Jurisdictional issues with emphasis
on application of relevant laws (like the law of Contract, Torts, Criminal
Law, IT Law etc., Territorial Protection, Competent For a and International
Copyrights; and (4) Strategies for Effective Enforcement of Copyright, with
emphasis on adequacy and effectiveness of existing remedies, fairs use/fair
26
dealing, adequacy of law and need for change and need for specialized
Courts/Tribunals.
The motivation behind the organization of these Seminars with the
support of the Ministry of HRD, Government of India, New Delhi has been
well stated as follows in the brochure of the seminar as follows:
“The advent of science and technology has resulted in creation of new
kinds of IP and also new species of works that can be protected under
the Copyright Law. At the same time, the technological advances
have also made the protection of Copyright difficult, if not impossible,
as it is now possible to copy, replicate and transfer the information in
any copyrighted work, without any punishment from the author/owner
of such works. The international as well as national legal regimes are
being overhauled, updated and modified to meet these challenges. In
spite of strong IP regimes, there have been complaints about the large
scale infringement of copyrighted works in various forms mostly due
to the digital technology. Various sections of the society suffer due to
ineffective protection of copyright including authors, publishers,
musicians, photographers, information technology companies, film
industry and performers. The players involved in copyright protection
are corporate sector, authors and owners etc. of copyrighted works,
the copyright authorities and the law enforcement machinery
including police, lawyers and Courts.”
I was speaking two years ago in Delhi in a Seminar organized by the
Faculty of Law, Delhi University about two years ago and made the
27
following concluding remarks about today’s challenges in Copyright law
arising out of technology revolution and in particular the ‘internet’ which
today enables extraordinary violation of copyright law. I said:
“Some say that Internet has sounded the death-knell of copyright. But
others say that copyright has remained flexible and that the
technological changes right from Queen Annes’ Act of 1710 have
been assimilated into the system by way of ‘fencing technologies’.
Since Internet is a global phenomenon, it is felt that there must be
harmony in the laws of all countries. There should not be hasty
domestic legislation before the ‘nature of the best’ is understood. Nor
could there be undue delay which could be confused with ‘legal
impotence’. As pointed out by the U.S. District Court for the Central
District of California in Playboy Enterprises vs. Netscape and Excite
(1999) 55. F 2d. Suppl. 1070), too much of disharmonious legislation
could create difficulties for the Courts as the Courts are “mindful of
the difficulties of applying well-established doctrines to what can only
be described as an amorphous situs of information, anonymous
messenger of communication and seemingly endless streams of
commerce.”
Now the Indian Copyright Act, 1957 was amended in 1984, 1994 and
1999. While the 1984 amendments attempted to prevent piracy, the 1994
amendment covered the areas of protection of performer’s right, copyright
societies, assignment of copyrights by authors and artists, protection of
computer programmes, cinematography of films and sound recordings; the
1999 amendments amended the definition of literary work, the meaning of
28
copyright in respect of computer programmes, and increased the term of
copyright of performers from 25 to 50 years. After the 1999 Amendments,
further technological developments posed new challenges to copyright. To
deal with certain aspects arising out of the latest technology, Parliament
passed the Information Technology Act, 2000. That Act has made important
amendments to the Indian Penal Code, the Indian Evidence Act and the
Code of Criminal Procedure, but did not amend the Copyright Act, 1957
further.
Now sec. 51 to 53 of the Copyright Act, 1953 deal with ‘Infringement
of Copyright’, sections 54 to 62 with ‘Civil Remedies’, sections 63 to 70
refer to various ‘offences’ which result in different punishments. Section 53
refers to Administrative remedies. India has not yet become party to the
WIPO Copyright Treaty 1996 and WIPO Performer and Programmes Treaty
1996, though some countries have amended their laws to implement these
treaties. The US has passed the Digital Millennium Act, 1998.
Several defects have been pointed out in various seminars or
published articles and books as to what is still lacking in The Copyright Act,
1957. For example, it has been suggested that sec. 2(ff), sec. 2(ffc) and sec.
2 (hh) be amended to include ‘internet’, sec. 2(ffc) be amended to include
‘web pages’, sec. 2(hh) be amended to include ‘Compact disc – writers,
floppy drives and electronic copying.
It is said that the liability of
‘intermediate service providers’ (ISP) be specifically stated instead of the
general exemption given in the Information Technology Act, 2000. Should
a provision be made permitting the copyright holder to direct the service
providers to remove the copyrighted matter from the network or to prevent
29
access to such material. Should there be a remedy for the former if the latter
disobeys the directions of the former or what should be the remedy of the
latter if the directions to the service provider is false. There is no provision
dealing with new issues of territorial jurisdiction for the internet is faceless
and borderless. Should sec. 13 be amended to include ‘compilation of any
form’? Regarding ‘fair use’ doctrine, should there be a norm set as to what
is the fair percentage of use? In regard to digital technology, questions have
arisen whether a limit granted by the copyright holder in favour of another to
publish the same in print-media, will include making the work available online?
If ‘idea’ is not copyrightable to what extent is the ‘expression’
copyrightable? What other provisions require to be made in respect of
broadcasting,
satellite
transmission,
cable
transmission,
databases,
distribution rights, fixation rights, reproduction rights? Section 65 of the IT
Act deals only with tampering of compilation source documents and sec. 79
with network server providers’ liability. We have today, a host of legislation
in other developed countries on these aspects.
In several conferences organized in India, it is pointed out that there
are serious breaches of copyright in our country and enforcement is poor. I
may point out that this is not peculiar to India alone. I shall refer in some
detail about Australia.
For example, in Queensland, Australia, the
Department of Employment, Training and Industrial Relations has advised
that there was widespread anecdotal evidence of copyright infringement
within the vocational education and training sectors.
This Australian
Copyright Council has stated that the level of copyright infringement and
commercial piracy in Australia are of concern and that Government policy
and resources must be directed towards reducing these levels. It pointed out
30
that there was a perception in the law enforcement agencies that copyright
infringement was primarily a matter for copyright owners alone. Intellectual
property rights, including copyright, are viewed differently from other
categories of property rights. It pointed out that, in fact, such breaches
adversely affect consumers, employment, government revenue and gross
domestic production. Enforcement is of utmost importance to industries
such as music, book publishing and film industries.
The long term
sustainability of these industries depends upon effective protection and
infringement of rights they own. The Report pointed out that the main
reason for infringement in Australia was the lack of resources and expertise
in this area. Further, even when prosecutions succeed, meager fines are
imposed such as $500 for piracy where 1000 CDs were seized in an offer to
supply 20,000 CDs. In another case of 32 counts, the fine was $200. The
Music Industry Piracy Investigation and Motion Pictures Association
recommended that a Committee consisting of enforcement officials and the
industry be set up to co-ordinate intelligentsia. In 1997, the Australian
Federal Police (AFP) proposed the establishment of a committee consisting
of representatives from the intellectual property industries, the AFP and
Customs Department.
It was felt that federal and state agencies must
exchange information. In November 2000, the House of Representatives of
the Commonwealth of Australia published a very exhaustive Report on
Copyright infringement and methods to track down on copy____. But in
February 2000, the government has indicated that the recommendations
were not likely to be adopted in the near future.
An indication of the revenue lost by copyright owners due to private
copying as long back as in 1991 was as follows:
31
In US dollars: France $100.50 million; Germany $ 70.00 millions; Finland
$11 million; Australia $10.40 million; Hungary $ 0.66 million; Iceland
$0.44 millions.
It appears that convergence of technology resulting in devices that can
simultaneously receive and duplicate copyright material well lead to increase
in the level of this type of infringement.
New solutions being implemented are encryption, enabling owners to
directly licence duplication of copyright material. The process of blankrecording of media levy is being adopted in many countries, under which a
levy is paid on blank recording media or recording equipment either by the
manufacturer or by the wholesaler, retailer or consumer to a collecting
society which distributes the money to owners of copyright in material
copies. In some countries, it is proposed to ban commercial dealings in
devices able to be used to circumvent effective technological protection
measures. This is required under Art. 11 of the WIPO treaties. In certain
cases copyright owners are using contractual agreements governing use of
material purchased in electronic form to override fair-dealing and other
exceptions set out in copyright legislation.
Copyright owners are
increasingly looking to technological protective measures, such as ‘locks’
for protection of their material, particularly in the digital, on-line
environment. For on-line environment, such protective measures are the
equivalent of locked doors and security guards. But technological measures
can be overcome, just as warehouses can be broken into. Further, those
measures do not apply to copies of material available in non-digital form.
32
I shall finally refer to the development needs of developing and poor
nations. The Commission on Intellectual Property Rights in its Report on
‘Integrating Intellectual Property Rights and Development Policy’ (London,
Sept., 2002) included Prof. John Bartar of Stenford University, Prof. R.
Mashelka, DG, CSIR and others. The Commission was established by the
Secretary of State for International Development, UK. The members visited
developed countries as well as countries in Africa and Asia.
In the
foreword, it is stated that while developing countries want more IPRs for
good business, the developing world believes that IPRs are likely to cripple
the development of local industry and technology and will harm local
population and benefit more except the developed world and TRIPs has
increased inequalities.
The developed world is able to adjust itself to
disadvantages from IPRs and has the economic strength and established
legal mechanism to overcome problems.
The advantages of IPR give
developed countries more wealth. The Committee recommended that higher
IPR standards should not be pressed upon developing countries without a
serious and objective assessment of its impact on development. IPRs have,
it says, been regard as ‘good’ for rich countries and ‘poison’ for poor
countries. The impact of IP policies on poor people will also vary according
to socio-economic circumstances. What works in India, will not necessarily
work in Brazil or Botswana. The Report says that the ‘fair use’ or ‘fair
dealing’ provisions have not met the needs of developing countries,
particularly in the field of education. Stronger protection and enforcement,
the Report says, will reduce access to knowledge-related products in
developing countries, with potentially damaging consequences for poor
people. For instance, the cost of software is a major problem in developing
countries, and is “the reason for the high level of illicit copying”. Copyright
33
can also be a barrier to the further development of software which is
specifically adapted to local needs and requirements”. It says:
“Access to internet in developing countries is limited, although
growing rapidly in most countries.
But the internet provides an
unrivalled means of low cost access to knowledge and information
required by developing countries, when their access to books and
journals is severely restricted by lack of resources.
But the
application of copyright rules to the internet is problematic. A historic
‘fair use’ rights may be restricted by forms of technological
protection, such as encryption, which restricts access even more
stringently than copyright. In the USA, recent legislation (the Digital
Millennium Copyright Act) forbids the circumvention of such
technological protection, even when the purpose of circumvention
does not contravene copyright laws. The EU has introduced a special
form of protection of databases (the ‘Database Directive’) which
rewards investment in the creation of databases, and which may
restrict access to data by scientists and others, including in developing
countries. The 1996 WIPO Copyright Treaty contains elements which
may restrict the access of developing countries to information.”
The Report makes very important recommendation for the betterment
of people in developing countries, as follows:
“Publishers, including those on-line, and software producers should
review their pricing policies to help reduce unauthorized copying and
to facilitate access to their products in developing countries.
34
Initiatives being undertaken by publishers to expand access to their
products for developing countries are valuable and we encourage an
expansion of such schemes. The extension of free on-line access
initiatives for developing countries to cover all academic journals is a
good example of what could be done.
In order to improve access to copyrighted works and achieve their
goals for education and knowledge transfer, developing countries
should adopt pro-competitive measures under copyright laws. They
should be allowed to maintain or adopt broad exemptions for
educational, research and library uses in their national copyright laws.
The implementation of international copyright standards in the
developing world must be undertaken with a proper appreciation of
the continuing high level of need for improving the availability of
these products, and their crucial importance for social and economic
development.
Developing countries and their donor partners should review policies
for procurement of computer software, with a view to ensuring that
options for using low-cost and/or open-source software products are
properly considered and their costs and benefits carefully evaluated.
In order that software can be adapted to local needs, developing
countries should end=sure that their national copyright laws permit
the reverse engineering of computer software programmes, in ways
that are consistent with relevant international treaties which they have
signed.
35
Internet users in developing nations should be entitled to fair use
rights such as making and distributing printed copies from electronic
sources in reasonable numbers for educational and research purposes,
and using reasonable excerpts in commentary and criticism. Where
suppliers of digital information or software attempt to restrict “fair
use” rights by contract provisions associated with the distribution
digital material, the irrelevant contract provision may be treated as
void. Where the same restriction is attempted through technological
means, measures to defeat the technological means of protection in
such circumstances should not be regarded as illegal.
Countries
should also not follow the lead of the US and the EU by implementing
legislation on the lines of the DMCA or the Database Directive.