Digital Rights Management in India A comparative study with US and EU I could be bounded in a nutshell, and count myself a king of infinite space. 1
The 1980s and the 1990s saw the digital revolution sweeping the world and advent of internet over the World Wide Web. It is very pertinent for lawmakers, content owners, consumer electronics and consumer manufacturers to understand the technology of the Internet, the function it performs, the uses of such technology, and the role of the principal players on the Internet in order to understand the legal implications of the Internet on the copyright of authors. Internet is often described as a network of networks. 2 Anyone can gain access by use of an appropriate modem, 3 usually with an appropriate agreement with an access provider, a person who provides a gateway link to the internet. Material can be accessed, viewed, retrieved, printed and downloaded 4 from all over the world. We do not have an owner or proprietor who owns and controls internet. It is, therefore, sometimes described as information technology communications anarchy. 5 It is also defined as a set of computer networks, possibly dissimilar, joined together by means of gateways that handle data, transfer messages from the sending network by means of the protocols used by receiving network. 6
The Copyright Act was amended in the year 2012 so as to comply with the international treaties, WCT 7 and WPPT 8 though India has still not ratified the same. Making copies on the internet has become lot easier and each one looks original. The fact that they are made available on the Internet does not constitute a waiver of copyright nor does it carry any implied
1 William Shakespeare, Hamlet, Act 2, Sc 2. 2 J.H. Smith Grahm, Internet Law and Regulation (Sweet and Maxwell 3 rd ed. 2002) 1. Also see, Rodney D. Ryder, Intellectual Property and the Internet (Lexis Nexis Butterworths, 2002) 67; Jeffrey M Samuels, Patent, Trade Mark and Copyright Laws (BNA Book 2001). 3 See supra note 4: It is a device for converting electrical signals from a computer into a form which permits their transmission along telephone lines and vice versa. It is used for communication between computers via telephone lines. 4 Download is the transfer of data to another computer, a peripheral device or a remote location. 5 Krishna Kumar, Cyber Laws Intellectual Property and E-Commerce Security (Dominant Publishers and Distributors 1 st ed. 2001) p.69. 6 See Microsoft Press Computer Dictionary (1994) p.220. 7 WIPO Copyright Treaty 8 WIPO Performances and Phonograms Treaty
license for anyone to download or reproduce the material without the permission of the copyright owner. Digitization has caused the cost of copying and distribution to fall to virtually zero. Can the distinction between traditional original and copy be applicable to such a communication technology where these distinctions are meaningless? The most fundamental issues that arise pertain to determination of the scope and protection of rights of copyright owners in the digital environment. Some of the specific issues that have arisen are: How should the rights of the authors be defined and what exceptions and limitations permitted to such rights? How are the rights of the authors to be enforced and administered in this digital environment? Can the existing worldwide copyright rules adequately protect the interests of those who hold copyright or are changes to the existing rules required? It is, however, a good practice for all copyright owners to maintain documentary evidence of the date of creation of the work, and display a notice regarding ownership of copyright on the material posted on the Internet that shall facilitate proof of copyright should there be a need to enforce the copyright against a third party. I part of the paper deals with the new provisions added in the Copyright Act, 1957 by the way of amendment in 2012 in order to comply with WCT and WPPT. Part II contains a comparative analysis of the new provisions with similar provisions in US and EU to help comprehend the new provisions from a comparative perspective and it finally concludes in Part III with few suggestions.
Part I: Provisions added by Copyright Amendment Act, 2012 regarding DRM Section 65 A and Section 65B were added by way of amendment in 2012 to the Copyright Act. When one reads Section 65A, the anti-circumvention provision along with the exceptions enumerated, three major implications of the legislative approach become obvious. Firstly, by limiting the application of the anti-circumvention provision to cases of intentional infringement, the legislator has used a fairly high bar for invoking actions based on this provision. Secondly, as the exception provision clearly mentions, if the circumvention was for a purpose not expressly prohibited by the Copyright Act (for example, exceptions allowed under the Copyright law), the anti-circumvention provision will not apply. Thirdly, the legislature also allows circumvention with the help of third parties, provided certain procedural
conditions are met. The significance of these three aspects will be better understood, when one reviews the US and the European approach to anti-circumvention provisions. According to Section 65B(i) of the Act, if any person knowingly removes or alters any rights management information without authority, s/he shall be imprisoned for up to two years and shall also be fined. Similar punishments are also prescribed for persons who distribute, import for distribution, broadcast or communicate to the public, copies of any work or performance without authority, knowing that the rights management information has been removed or altered without authority as per Section 65B(ii). The provision also specifically mentions that the criminal remedies provided are in addition to the civil remedies already provided under the Copyright Act for the copyright owners in such works. There are two factors which need to be highlighted: First, when compared to the provisions relating to protection of technological measures, the provisions relating to protection of rights management information takes a far more rigid approach. This is visible from the absence of any explicit exceptions under the provision. Second, by explicitly mentioning the additional availability of civil remedies, the provision on protection of rights management information shows a stricter approach, compared to the provision against circumvention of technological protection measures. Both the provisions relating to protection of technological measures and rights management information illustrate a carefully drafted legislation meant to satisfy the minimum requirements of the WCT and the WPPT. They are also remarkable for not providing broad protection to subjects generally outside the purview of copyright protection.
Part II: Analysis of the Indian DRM Provisions from a Comparative Perspective To recognize the significance of the minimalist approach taken by the Indian legislature with respect to DRM, one may have to see the provisions in comparison with some other jurisdictions that have implemented the provisions of the WCT and the WPPT. The DRM provisions in the US and the EU may be considered for this purpose. These jurisdictions are chosen not only for their prominent role in the evolution of the WCT and the WPPT, but also for their comparatively longer experience with DRM provisions. 9 The DRM provisions proposed under the WIPO Internet treaties were implemented in the United States through the
9 For an interesting historical discussion on how the US attempted to place its digital agenda before the WIPO and also the subsequent negotiations with different parties, including the European Union, that culminated in the present WIPO DRM provisions, Samuelson Pamela, US Digital Agenda at WIPO, Virginia Journal of International Law, 37 (2) (1997) 369-440.
Digital Millennium Copyright Act (DMCA), in the year 1998 (ref 10). 10 One of the most important factors that distinguish the DMCA from other DRM legislation is that it attempts to make a distinction between protection for measures that control access to a work and protection for measures that control use of a work. 11 Interestingly, the DMCA access control provisions not only outlaws the actual circumvention of access control measures placed on a work, but also aims to prevent preparatory activities like manufacture and distribution of tools that are primarily meant for facilitating circumvention of access control. 12 On the other hand, the anti-circumvention provisions relating to protection of usage control measures prohibit only preparatory activities. 13 The DMCA also outlaws tampering of rights management information and dealing in such works with the knowledge that the rights management information has been tampered. 14 The explicit exemptions provided under the DMCA are very narrow in scope and they are provided for the purposes of encryption research, law enforcement and security related government activities, reverse engineering, and acquisition assessment for non-profit libraries, archives, and educational institutions. 15 Though the DMCA has delegated some powers to the Librarian of Congress to periodically make rules for allowing specific exemptions, a review of the exemptions made so far in this regard shows that its scope of application is very narrow. 16 The DMCA provides civil as well as criminal remedies for violations of anti-circumvention provisions. 17
10 17 U.S.C. 1201-1205. While DMCA was drafted subsequent to the WIPO Internet treaties, some of the copyright scholars who have attempted to record the history of DRM provisions of the DMCA have highlighted the prominent role played by the 1995 white paper under Clinton administration, Intellectual Property and the National Information Infrastructure, which set the digital agenda of the administration; Samuelson Pamela and Suzanne Scotchmer, The law and economics of reverse engineering, Yale Law Journal, 111 (7) (2002) 1634 and Besek June M, Anti-Circumvention Laws and Copyright: A Report from the Krenochan Center for Law, Media and the Arts, 400-402. 11 For the anti-circumvention provisions regarding access control, 17 U.S.C. 1201 (a) (1) (A) and 17 U.S.C. 1201(a)(2). For the anti-circumvention provisions regarding usage control, 17 U.S.C. 1201 (b) (1). 12 17 U.S.C. 1201(a)(2). 13 17 U.S.C. 1201(b)(1). 14 17 U.S.C. 1202 15 17 U.S.C. 1201 16 17 U.S.C. 1201 (a) (1) (B), (C), and (D). The rule-makings in this regard were conducted in the years 2000, 2003, 2006, and 2010. The latest rule-making on 27 July 2010 exempts only six categories of users from the prohibition against access control measures. This includes circumvention of access controls in a legitimately purchased DVD to extract short portions for the purpose of criticism or comment in educational purposes, documentary film making, and non-commercial videos. For the complete list of six classes of uses currently exempted, see Statement of the Librarian of Congress Relating to Section 1201 Rulemaking,http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.html (15 March 2012). 17 17 U.S.C. 1203 and 17 U.S.C. 1204.
A similar picture of DRM laws could be seen from Europe also. The copyright law in Europe is not yet completely harmonized at the community level and there are still considerable differences in the approaches taken by different member states of the European Union with regard to copyright law. The Information Society Directive of 2001 was a major attempt aimed at copyright harmonization within the community and it had also mandated all the member states to bring DRM regulations in the national legislation of member states. 18 Article 6 of the Information Society Directive makes it obligatory for the member states to provide adequate legal protection against the circumvention of effective technological measures, if the person concerned is engaged in circumvention with the knowledge, or with reasonable grounds to know, that s/he is pursuing that objective. 19 The Directive also specifically outlaws many preparatory activities of commercial nature, with regard to circumvention of technological protection measures. 20 Article 7 of the Directive also outlaws tampering of rights management information and dealing in such tampered works, when the person concerned is engaged in such acts with the knowledge or reasonable grounds to know that s/he is inducing, enabling, facilitating or concealing infringement of copyright or database rights through such actions. Unlike the new Indian DRM provisions or the DMCA, the Directive does not give exceptions for any specific groups. The review of implementation of the DRM provisions prescribed under the Information Society Directive in different member states shows that member states have taken diverging approaches for implementation. 21 While some member states have restricted the protection to instances of copyright infringement, some member states have protected the technological measures per se. It is also interesting to see that none of the member states have provided an express right for users to circumvent the technological measures for non-infringing purposes. 22 As is evident from the procedural mechanisms installed by different member states, users who want to make use of any legitimate copyright
18 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF (10 January 2012). 19 Article 6 (1) of the Information Society Directive. 20 Article 6(2) of the Information Society Directive. 21 For a good overview of the procedural approaches taken by different member states with respect to enforcement of limitations, Westkamp Guido, Study on the Implementation and Effect in Member States Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society: Part II - Implementation of Directive 2001/29/EC in the Member States, 67-68. 22 For an excellent overview of the detrimental effects caused by DMCA from 1998 to 2010, Lohmann Fred Von, Unintended Consequences: Twelve Years under the DMCA (Electronic Frontier Foundation), 2010, https://www.eff.org/sites/default/files/eff-unintended-consequences-12-years_0.pdf (2 April 2012).
exceptions may have to approach the designated authorities, and in some cases the courts directly, in the absence of voluntary agreements with the right holders. 23 This in turn reflects a highly disturbing picture of how the legitimate exceptions to copyright infringement, used to balance the rights of copyright holders with that of copyright users, are distorted by the new DRM regime in Europe. As one could see from a comparative analysis of the new DRM provisions in India with the DRM provisions in the US and the EU, the breadth of the new DRM provisions in India are less extensive compared to both the DMCA and the Information Society Directive. But this may not be without a reason. The DRM provisions in the US and the EU have been in existence for around a decade now and this has provided a great learning opportunity for many other nations to see how draconian and anti-progressive DRM provisions can be, in many real life situations. 24 This includes serious transgressions over freedom of speech, scientific research, competition in the market, and most importantly, fair use/ fair dealing principles, which balance the copyright system between the interests of the copyright owner and that of the public. 25
The anti-circumvention provision attaches liability to every person who circumvents an effective technological measure. However, it is noteworthy that neither the term circumvention nor the terms technological measure or effective technological measures have been defined in the Act. The corresponding provisions in the WCT and the WPPT also left these definitions open ended so that different Member States could interpret these terms keeping in view their domestic needs. The absence of definitions for terms like technological measure in the Indian amendment, creates a gap because it is not clear as to whether the provision relates to access control measures or copy control measures or both. Furthermore, it being preceded by the term effective necessarily implies that all technological measures are not effective. This further implies that circumvention of non-effective technological measures does not attract liability under this provision and if infringement is caused, liability can be
23 Edelman v N2H2, INC, 263 F. Supp. 2d 137 (2003) and Universal v Reimerdes, 111 F.Supp. 2d 294 (2000), Lohmann Fred Von, Unintended Consequences: Twelve Years under the DMCA, 1-20; Besek June M, Anti- Circumvention Laws and Copyright: A Report from the Krenochan Center for Law, Media and the Arts, 467-469; and Burk Dan L, Legal and technical standards in digital rights management technology, Fordham Law Review, 74 (2) (2005) 561-568. 24 Some of the judicial decisions that can illustrate the long reach of DMCA anti-circumventions provisions are Universal v Reimerdes, 111 F.Supp.2d 294 (2000); RealNetworks, Inc v Streambox Inc, 2000 U.S. Dist. LEXIS 1889 (2000); Edelman v N2H2, INC.,263 F. Supp. 2d 137 (2003); 321 Studios v MGM Studios Inc, 307 F. Supp. 2d 1085 (2004); RealNetworks Inc v DVD Copy Control Association Inc,641 F. Supp. 2d 913 (2009); Lohmann Fred Von, Unintended Consequences: Twelve Years under the DMCA, 2-20. 25 The Chamberlain Group Inc v Skylink Technologies Inc, 381 F.3d 1178 (2004) and Lexmark International Inc v Static Control Components Inc, 387 F.3d 522 (2004).
attached only to infringement and not circumvention. But the provision does not lay down any guideline as to how to differentiate between an effective technological measure and a non- effective technological measure. If the purpose of a definition is to give clarity as to what will be the activities that will be covered by the provision, the amendment has failed in this aspect. Consequently it has also not done much to simplify possible problems relating to the interpretation of the term plate under Section 2(t) of the Copyright Act, 1957 which was earlier in existence. From the drafting of the provision it seems that the legislature has left it entirely to the domain of the judiciary to decide as to what will comprise an effective technological measure and what will constitute circumvention. This is a policy decision that should have taken into account various facts like identification of all effective technologies that have minimum adverse effect on the legitimate interest of the public, recognition of all technologies that serve the need of the owners of copyrighted works protected by technology, etc. Further, the application of the provision essentially lies in the meanings attributed to these words and leaving them to the judiciary does not seem to be a commendable approach. The WCT and WPPT mandate is that States need to safeguard only those technologies which have been used to protect rights conferred by the respective convention and under the Berne mandate. It further restricts those acts which are not authorized by the author or restricted by the law. The Indian provision says that it can be applied for the purpose of protecting any of the rights conferred by this Act. This provides that any technological measure applied for the protection of any and all rights provided under the Act will be covered. The first category of rights protected under the Act is the economic right (Section 14), the major being the right of reproduction which comprises of making available of physical copies of the work and the right of communication of the work which comprises of making the work available otherwise than by issuing physical copies. It is this right of communication of the work to the public that is most significant in the online digital context. The earlier Copyright Act, 1957, under the right of communication to public, did cover the Internet scenario in a limited way. To bring further clarity, the Amendment Act of 2012 modified the definition of communication to public [(Section 2(ff) of the Copyright Act, 1957] so as to include the online context. This means that the author of the work has the right to make the work available to the public at large or to a particular category of the public. This in turn confers on the author a right to grant or deny access to a particular work, in relation to the whole world or any specified group. When the provision dealing with imposing liability for
circumvention of technological measures comes into force, the right of regulating access to the work will also devolve on the author of the work. This means that the copyright regime thereon has the duty to protect this right also. This implies that a technological measure that is intended to protect access will also be covered within the said provision for the reason that access right is a protected right. This also means that circumvention of an access control technological measure will also attract liability, though the same has not been particularly laid down as opposed to the laws in US laws where there it isnt a mandate that such circumvention must lead to copyright infringement. This has caused much difficulty since persons who had circumvented the protection technology had been held liable even in cases of mere circumvention not leading to any kind of loss to the owner of the protected copyrighted work. In EU, however, direct link between the act of circumvention and resulting infringement is obligatory. It can be seen that the new Indian provision has also followed the same line, underlining the fact that the purpose of copyright law is to protect what is due to the author of an original work.
Part III: Conclusion and Suggestions Copyright law provides one of the most important forms of intellectual property protection on the Internet. Considerable challenges are presented, however, in adapting traditional copyright law, which was designed to deal with the creation, distribution and sale of protected works in tangible copies, to the electronic transmissions of the online world in which copies are not tangible in the traditional sense, and it is often difficult to know precisely where a copy resides at any given time within the network. The Copyright (Amendment) Act, 2012, seeks to make its relevant provisions conform with the WCT, 1996, and the WPPT, 1996, to the extent considered necessary and desirable. The amendments strengthen the rights of the authors, streamline the process of assignment and grant of licenses, facilitate better access to works, and extend fair use provisions, in general and in particular to the internet. The changes made in the provisions of assignment and licensing and in copyright societies are expected to streamline business practices but has an underlying concern about protecting authors interests. 26
26 Zakir Thomas, Overview of changes to the Indian Copyright law, Journal of Intellectual Property Rights, 17(2012) 333.
By including the Digital Rights Management (DRM) provisions in the Indian Copyright law, without engaging in due economic analysis as to their need as well as consequences, the proponents of the new DRM provisions have risked a reduction in social welfare. The danger is further aggravated by fact that the new legislation does not even provide the mandatory periodical review of the working of those provisions. 27 Better and sufficient protection is required for the right holders in the digital world. The amendment which provides for protection of technological measures also calls for the extension of the provision to include cinematographic films and sound recordings as a category of work. The recognition of these works, now available in the digital format gives an enormous boost to the entertainment industry. 28 Currently, the rate of work transmitted through on- demand services, live streaming, downloading etc., is very low and accounts only to around 3 percent of the total transaction in the industry on a yearly basis 29 . But with the availability of higher broadband width, the contribution of this sector is expected to grow to a higher level. Thus, it can be concluded that the amendments introduced by the Copyright (Amendment) Act, 2012 are forward looking which will enable the Indian Copyright Act of 1957 to retain its claim to be one of the strongest legislations in the world.
By- SHRUTI RASTOGI, Student, pursuing LL.M. in Intellectual Property Rights at Gujarat National Law University.
27 Arul George Scaria, Does India need Digital Rights Management Provisions or Better Digital Business Management Strategies, Journal of Intellectual Property Rights, 17(2012) 473 28 Arathi Ashok, Technology Protection Measures and the Indian Copyright(Amendment) Act, 2012: A Comment ,Journal of Intellectual Property Rights,17(2012) 529 29 Sensarkar Nilanjana, The potential impact of digital rights management on the Indian entertainment industry, Journal of Intellectual Property Law and Practice, 6(1)(2007) 47.