COPYRIGHT IN DIGITAL ENVIRONMENT: ISSUES AT STAKE

With the advent of the industrial revolution and the invention of the printing machine, there was another thing which came to light viz. rights of the author to print and publish his work. These rights were not acknowledged as soon as they had evolved. But it has taken years, decade and centuries to protect the right of the author or the creator, but still the destination is unreached. To understand the issues of copyright and digital environment it would be appropriate to first deal in the light of the historical aspects of the topic under consideration.

Historical reflections
The Statute of Annecan be proudly declared to be the first Act to acknowledge the rights of the authors to print and publish their books. This came in the year 1709, but still left a wide space for doubt and disagreement. It was in conflict with the common law of the land and thus the scope of the statute was reduced to be effective only before the publishing of the book.

But this limitation also could not stop the law from evolving and in the year 1886, came the first convention on the topic of copyright, the Berne Convention for Protection of Literary and Artistic Work. Before Berne Convention the work of an individual were only protected in his own nation owing to the national Copyright Act, but could be sold or used by any one outside that country. This is where the importance of the Convention lies. It brought a universal recognition to the works of creativity and skill. This Convention was effected as a result of the efforts of the Victor Hugo and was thus influenced by the French idea of the rights of the Author. It was contrary to the other prevailing concepts of copyright which dealt only with the economic issues. Thereafter, there were many laws and international convention which were framed on this issue. These include Universal Copyright Convention of the year 1952, Rome Convention

1961, Geneva Convention 1971, WIPO Copyright Treaty 1996, etc. Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) also protects the copyright infringement along with the other intellectual Property Rights in its Part II and grants copyright to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. A large amount of National laws have also emerged in many countries which try to deal with various aspects of the Copyright issues. The most recent and the most effective ones have been passed by the US parliament under the name of Digital Millennium Copyright Act. This deals with the digital aspects of the copyright and tries to protect its infringement by the use of internet and puts limitation on the liability of the internet service providers. In India, there is only one Act viz. the Indian Copyright Act, 1956, which deals with all the aspects of the copyright protection in India. But when it comes to copyright in digital Environment the IT Act 2000 also plays a very significant role.

Where lays the problem?

The copyright is a very vast field which not only protects original literary, dramatic, musical and artistic works; but also cinematograph films and records. The literary works here includes all tables, compilations and databases and also the computer programs. When the discussion is about digital environment it is this aspect of the copyright, which assumes the most important place. Now a days internet has become the main source of copyright infringement as it provides a wide access to a large amount of data. On internet a copyright infringement can take place in many ways such as posting or uploading of material to the website, linking, framing, caching and archiving.1

In the first case the infringement takes place when without the permission of the copyright owner the copyrighted material is uploaded on ones website. Caching is an
1

Don W Martens and Stacey R Halpern, Intellectual Property Law in Cyberspace, Paper presented at the

seminar on Cyber Law organized by International Chamber of Commerce New Delhi, 29 April 1997.

activity in which the copy of a material from an original source is stored in a cache for later use, when the same material is requested again. Cached material is generally stored in a cached memory available to the user for a temporary period.2

Framing allows a website to incorporate the contents from another website into a window or frame of its own in a manner wherein the framing site appears as the original website. Here each frame works independently so that there is no overlapping and the user remains at the framing website and is able to see the contents of the framed website. In Futuredontics v. Applied Anagramics, Inc.3, the court held the respondents liable on the ground that their site created an unauthorized derivative work through framing and violated the copyright of the plaintiffs.

Another way to infringe a copyright is by linking. A link connects the site to the pages of the other sites .A very important question which must be addressed while dealing with the copyright owners is that if a third party places a link to a page within a web site other than that sites Home page, is it liable for infringement?

Links on the websites are a very common thing indeed. They help the user to reach the page desired quickly and without having to go to every site to actually know what it has and what it does not have. The various search engines, like Google and Yahoo, give direct links to the web pages which contain the text wanted. It is a great way to conduct research by using the links placed. But the problem comes when the links take the user directly to the page and not to the home page of the website. This issue came to be dealt in Shetland Times Ltd. V. Wills4, in which Lord Hamilton held that all access to the substantive material on the website should be obtained exclusively by accessing their website through their homepage and that there should not be deep linking. So if there is a link which connects to another copyrighted material or picture which have their own
2

Pankaj Jain and Pandey Sangeet Rai, Copyright and Trade mark Laws relating to Computers, Eastern

Book Co, 2005, p. 278.

3 4

45 USPQ 2d (BNA) 2005 (CD Ca 1998) (1997) FSR 604, 1997 SLT 669.

URL addresses, than it does violate the copyright as anyone can have access to them directly, which brings the whole rationale behind copyrights to an end. This problem needs to be dealt with seriously as there are many advertisements which are placed on the home page for the viewers and deep linking does not provide it to be viewed. This infringes other right of the website too.

The Berne Convention expressly declares that there is no need for registration in the case of copyright, which comes into existence as soon as the work is put in written recorded or some other physical medium. This was a provision which was and is still considered to be the most effective one in terms of protecting copyright infringement. But when it comes to digital arena, this is where the first stone of problems of protecting copyright lies. In the present era of globalization, the exchange medium for everything have become very fast and adapted to the human needs, there is a lot of stuff which is transferred every second from one computer to another, from one network to another, from one nation to another. Now it becomes very difficult to actually keep track of what has gone where and to be more precise who all are using it. Masses avail them selves of any material which they find useful and make the use they want to. When there is no registration of the computer programs or any other literary or artistic work, then it becomes very difficult to prove the original author of the work. There can be no proof of who has actually created the work using his skill, labor and expenses. And when there is no proof the protection of the same becomes very difficult. Also the material is transferred all over the globe and common man is placed in a position to use it. How many of the people can be actually stopped from using the material which they can get for free of cost and which has no proof of actually being copyrighted?

The Digital Millennium Copyright Act of United States makes express provision in this regards. Section 411(a) of the Copyright Act requires claims to copyright to be registered with the Copyright Office before a lawsuit can be initiated by the copyright owner, but section 102(d) of the DMCA amends section 411(a) to exempt all the foreign works from such a provision. Herein all the foreign works are expressly exempted from the registration criteria if they have to file a suit for the claim for copyright.

Now lets take up an example comparing this provision of US law to Indian Copyright laws. DMCA of US makes it mandatory for the national creative works to be registered while the foreign works need not be registered to avail the claims. But in India no registration of works is required for any original work. Now, if an original work is created in US and is not registered before it got infringed, than it can get no claims over there. But the same work can get compensation in India, if it has been infringed in India. But this provision of US copyright law should be read in the light of Indian Copyright act. In India certain limitations have been enforced on the foreign works which are not put on equal footing as any Indian Work. One such limitation says that, when the term of copyright in the country of origin is different from that in India, the term of copyright in the work even in India will not exceed that enjoyed by it in the country of origin. Now when we look back at the same example there can be no compensation availed by an unregistered work of US, even in India. This conflict of laws brings a lot of confusion when it comes t enforcing ones right of copyright protection in India.

This conflict of laws can also be seen when it comes to section 42 of the Indian Copyright Act, which reads that if it appears to the central government that a foreign country does not give or has not undertaken to give adequate protection to the work of Indian authors, the central government may by order publish in the official gazette direct that such of the provision of this Act that confer copyrights on works first published shall not apply to works, published after the date specified in the order, the authors whereof are subjects or citizens of such foreign country and are not domicile in India. Such a provision secures the works the country in India only to the extent to which that country protects Indian works.

Another problem which occurs while filing a suit for claims of copyright infringement is that of jurisdiction. When a copyrighted material is transferred illegally over the internet, then it travels far and wide and throughout the globe. The place where it is displayed, stored or printed may be entirely different from the place where it originated; this applies even in the legal terms. The problem actually arises when the place for the jurisdiction

has to be decided. It should be where the work originated or the place where it was used violating the copyright.

When we look at this aspect of the International Copyright Environment, than it can be well inferred that the right of the author are not equally safeguarded everywhere. It is still defined by the laws of the nations and is not governed by any single entity. This is the most important drawback of the copyright laws, wherein the rights of that person are not saved who contributes their work also towards the economic well being of the country and also its prestige. Another problem lies in the matter of compilations. These are a copyright material as per the Berne Convention, TRIPS, WIPO agreement etc. A compilation, as a collection, has been defined in Berne Convention5 in its Article 2(5) as:

Collections of literary or artistic works such as encyclopedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections. These are just a collection of different materials which may have copyright or may not but the complete collection is undoubtedly copyrightable if it has some degree of originality. This protection is subject to an important limitation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim

Berne Convention for the Protection of Literary and Artistic Works , of September 9, 1886, completed at

PARIS on May 4, 1896, Article 2(5)

a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. . . . Where the compilation author adds no written expression but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection.6

In compilation, copyright is given on the manner and exclusivity of the selection and arrangement of that data. It is not given on individual data which form a part of the main compilation, and this is where the problem lies. The data which is collected by the author of the compilation through an online survey involves his skill and labor and also expenses. But he still gets no copyright over the collected data as he is not adding anything to the facts and is letting the bare facts speak for themselves. But the same collected data can be put together in a different manner to get another compilation by someone else who has just not used any skill in collecting the data. Herein the other person can also get a compilation copyrighted, though it may just involve inferences or excerpts of the previous or original compilation. This is the irony of the copyright laws.

Conclusion
Thus it can be well seen that the internet, which was started to for the convenience of the people and to save their time, has now taken a very much undesired direction for those who want to protect their original work of creativity. This direction is harmful for the entire society as it not only hampers the development and prestige of the nation but also discourages the people to put their abilities into expression and create originality. The problem here lies not with the digital environment basically but the way it is being put to

Feist Publications Inc. v. Rural telephone Service Company, (1991) 499 US 340.

use. And this is where the solution to this problem lies. But there is a long distance to be covered in this area. Woods are lovely dark and deep, But I have promises to keep, And miles to go before I sleep, And miles to go before I sleep.* *No copyright infringement intended. These lines are taken from a poem In the Woods on a Snowy Evening by Robert Frost.