Journal of Intellectual Property Rights

Vol 25, January-March 2020, pp 5-14

A Reflection upon the Digital Copyright Laws in India

Received: 22 October 2019; accepted: 26 January 2020

In this digital age, where everything is available at one place, to everyone, at all times, the vulnerability of copyrighted
works has increased manifold. With high speed internet, peer-to-peer networks, excellent technologies facilitating rapid
reproduction without loss of quality, fast and easy dissemination and high density storage devises, the copyright violation is
becoming an effortless task. Though the traditional notion of copyright still remains the same i.e., protection from piracy,
however, the mode of operation has and is undergoing a systematic change in the wake of technological development. The
performance of rights in typical analogous copyright set-up is extremely different from the performance of such rights at
digital platform. Further, ubiquity of internet coupled with various technical obstacles has made it extremely difficult for
copyright holder to exactly locate and implicate the infringer/s, which in many cases may be located in different parts of the
world. Now with the advent of artificial intelligence, creation of copyright subject matter by machines with very less or no
human intervention is potentially raising question as to the authorship of such works. It is clear from the history of copyright
laws that it has always responded in affirmation to the technological advancements by amending the existing systems to
keep in tune with the changes taking place and to combat the challenges threatening its smooth and effective functioning. In
this backdrop, this article presents an analysis of the phenomenal impact of digital technologies over copyright regime, its
advantages and disadvantages, the protection of rights of copyright holder and the liabilities of intermediaries etc. Further,
this article shall also explore the digital copyright laws available in India to combat the myriad challenges posed by the ever
advancing digital technology and to find out their sufficiency.

Keywords: Copyright, Digital Rights Management (DRM), Artificial Intelligence, World Wide Web, The Copyright Act,
1957, Internet Treaties, peer-to-peer networks, circumvention measures, digital environment, digital library,
internet service provider

Intellectual property rights (IPR) are those exclusive begins. Digital piracy of copyrighted works is
rights which are granted to the becoming a regular phenomenon. Concepts like
authors/creators/inventors for the purpose of protection of computer programs, digital rights
protection of intellectual property which is the management, technological circumventions, etc. are
valuable outcome of their intellectual labour. The assuming importance.
legal protection of IPR mainly serves twofold The new technologies, from revolutionary printing
purpose, firstly, it encourages the creator community press to Xerox machines to World Wide Web, all
to produce more intellectual property (IP) by have been constantly expanding the scope and subject
according exclusive rights of its exploitation in their matter of copyright. As a consequence of which
favour and secondly, it promotes the social welfare as revisions to the copyright laws are made to keep the
all IP comes into public domain after a fixed tenure same in tune with the changing technologies and to
which can be freely utilized for further development combat the challenges posed by it.
and public good. The laws relating to intellectual Worldwide it is recognized that copyright piracy is
property rights are the best example establishing a serious crime which not only adversely affects the
relationship between law and science and technology. creative potential of the society by denying the
The advancement in the technology has definitely creators their legitimate dues, it also causes economic
increased the importance of IPR today. The effects of losses to all those who had invested their money in
digitalization can be best seen in copyright regime. bringing out copyrighted materials in various forms
Internet is undoubtedly the easiest way to retrieve and for use by end-users.1 The advancement of
disseminate information and this is where the problem technology, specially the internet services, has not
only made the copyright piracy an extremely easy
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Email: [email protected] task but has also been posing potential threats to the
6 MATHUR: A REFLECTION UPON THE DIGITAL COPYRIGHT LAWS IN INDIA

copyrighted works through caching and mirroring, develop only after the invention of the printing press
linking, framing, archiving, peer-to-peer networks, which made it possible to produce copies of a work,
etc. This article aims to address these aforementioned particularly literary work, in large numbers at a low
issues and the legislative response in India. cost.3 To deal with the unauthorized reproduction of
the author’s work, for the first time, the republic of
Copyright Regime-Traditional View Venice granted privilege to print books. Around the
Copyright plays a key role in the cultural and end of 17th century, the first recognizably modern
economic development of a country. The rich cultural copyright, the ‘Statute of Anne’, was passed in 1709
heritage of a nation heavily depends upon the level of taking effect in 1710. For the first time via this Act
protection afforded to literary, dramatic, musical and the rights of ‘author’ being the ‘owner’ of the
artistic works, cinematograph films and sound copyright in the work were recognized and fixed
recordings. The more efficient copyright system, terms of protections were also carved out. Since then,
more encouragement is afforded to the author there have been lots of activities in the form of
community to create more intellectual creations and various conventions, treaties, conferences etc. at the
thus, greater the nation’s renown. In India, the international level to foster law with respect to
important role played by the copyright in national copyright. In India, the current copyright regime is
economy has been highlighted in the Study on governed by a statute called ‘The Copyright Act,
Copyright Piracy in India1 thus: 1957’, a successor of the Copyright Act, 1914 which
“Besides protecting creative potential of the was heavily based on the UK Copyright Act of 1911.
society, copyright contributes to a nation on The main objective of revision of the erstwhile
economic-front as well. The copyright based Copyright Act, 1914 was to fulfill the international
industries together generate huge employment in the obligations and to combat the challenges posed by the
country of its origin. The national exchequer benefit advancement to technology and the means of
from the contribution made by these industries in the communication like broadcasting, litho-photography
form of excise duty, sales tax, income tax etc. from the and television etc.
production and sale of copyrighted products. Given As per current laws, the subject matter of copyright
the natural demand for such products from across the is the original literary, dramatic, musical and artistic
national boundaries exports help consolidate works; cinematograph films; and sound recordings.4
country’s foreign exchange reserves position.” Performer’s rights are also included within the ambit
The prime object of copyright law is to provide of copyright.5 The Act of 1957 recognizes two kinds
encouragement to authors with a view to induce them of rights viz., (i) economic rights6 and (ii) moral
to create more original works by rewarding them with rights7 with respect to the work. The rights under
the exclusive rights over their creations for a limited section 14 of the Act are exclusive rights which can
period leading to reproduction of the works for the only be exercised by the owner of the copyright and
ultimate benefit of the public. Generally speaking, these rights are ‘work’ specific as copyright being a
copyright gives the creators, be they songwriters, bundle of rights. The protection to these economic
filmmakers, authors, artists, poets, computer rights facilitates the exploitation thereof and help
programmers or broadcasters, the right to control the earning economic benefits to the author. Further, the
use of the copyrighted work.2 They can say yes; they moral rights are granted to the author protecting his
can say no. They can limit the use to certain times, right to claim authorship of the work and to maintain
certain days, certain geography. They can license the the integrity of his work. ‘Work’ is the brainchild of
work for many different kinds of uses; to reproduce or the author and every author has a right to claim
make a copy of the work, to distribute it, to display it paternity to his work and to protect his work from
publicly and to perform it publicly.2 distortion and mutilation. The copyright is not
The copyright as we understand it today is perpetual in nature, it has temporal limitations
essentially an outcome of modern civilization attached to it which is, in general, life of the author
beginning with the advent of printing press. Before plus 60 years thereafter. The exclusive rights under
this the works of literature and art were created Section 14 of the Act are transferable in nature. There
primarily to attain fame. The law relating to the exist elaborate provisions for the assignment8 and
protection of copyright in original works began to licensing9 of the copyright in the work by the owner.
 J INTELLEC PROP RIGHTS, JANUARY-MARCH 2020 7

The Act makes provisions for the infringement of the Advantages of Digital Technologies in Copyright Regime
copyright and provides for the civil and criminal Ease of Dissemination
remedies for the same. Apart from rendering the The digital technologies facilitate the simple,
protection to the rights of the authors’, the Act also speedy and global dissemination of work without loss
recognizes the right of public to make use of of quality and at a very less price. Once information
copyrighted material in certain circumstances, which from a single source reaches the recipient/s, digital
is termed as ‘fair dealing with the work’.10 networks allows the recipient/s to further disseminate
As we know, the copyright is a property right that the same to multiple recipients. Consumers do not
is given by law to authors/creators and the owners of face traditional hurdles of disseminating the
copyright (cases where ownership is taken from copyrighted work by using online mediums.
authors) to control the exercise of the exclusive
Faster Access to Digital Material
rights regarding their intellectual creations i.e.,
The ubiquitous nature of internet facilitates the
(‘works’). Traditionally, the copyright arose out of
easy and faster access to the material at digital
lobbying of publishers preventing primarily the
platform to the consumers who require such creations
‘piracy of the printed books’ which became a
for their benefit.
painless task owing to advent of printing press. The
advancement in the field of science and technology, Ease of Storage
specifically the digital technologies are intensely Digital medium offers excellent and dense mode of
affecting the existing legal paradigm of copyright storing copyrighted content as compared to the
however, the traditional notions of the subject matter traditional ones. CDs, pen drives or hard disks are
still remains the same i.e., protection from piracy. capable of storing the entire library.
The growth of new technology has revolutionized Easy Reproduction
the creation, dissemination, and consumption of the Digitization of the copyrighted materials renders its
copyrighted material which has both pros and cons. reproduction a painless task. Owing to the
The next section shall be elaborating on the same in magnificent advancement in related technologies, it is
details. now easy to reproduce of the digital contents with
precision in quality at a faster rate. In this manner,
Copyright in Digital Age one single copy can cater to the needs of millions with
The advancement in technologies has been the help of relevant software and the high speed
consistently impacting the operation of copyright internet.
laws and expanding its scope and subject matter. For
the copyright owners, although digital technology Time Effective
has provided them with the high quality of digital When everything is available at a single click at
copies and the increased ability to copy and one place, time is bound to be saved. Digital
distribute works, the same technology has technologies have made the dissemination of
jeopardized their ability to enforce their rights in the copyrighted contents a time saving task for both the
cyberspace.11 The unprecedented acceleration stakeholders, i.e., the authors as well as the consumers
provided by the advancing technologies to the of such work. It enables authors to make available
dissemination and reproduction of digital content their creations online, thus, saving their time in
with great speed, accuracy and no loss of quality is searching appropriate market for the same. Further,
commendable. However, the digitization has consumers’ time in going places to search the
simultaneously made alteration, mixing and material, which by digitalization is available at a
manipulation of the same piece of information more single click, is also saved.
or less an effortless task which is a big threat to the Cost Effective
copyrighted work. In cyber space, everything is The digital technologies are proving not only time
available at the click of a button easing the task of effective but extremely cost effective too, for both
not only retrieving information but also storing it creators of copyrighted contents as well as consumers
and further distributing it with precision and that too of the same. Dissemination and consumption of
at a very low price, escalating the unauthorized use copyrighted material through digital medium reduces
of copyrighted work. the economic cost of the same owing to the
8 MATHUR: A REFLECTION UPON THE DIGITAL COPYRIGHT LAWS IN INDIA

omnipresence of internet and less expenditure on other complete set of material from a source) means
reproduction set-ups and search costs. storing copies of material from an original source
site (such as, a Web page) for later use when the
Facilitation of Direct Publication by Authors
same material is requested again, thereby obviating
The digital medium offers an open platform to
the need to go back to the original source for the
authors to directly disseminate their works without
material.12 The purpose of caching is to speed up
intervention in the form of traditional publishers. The
repeated access to data and to reduce network
traditional way of dissemination of work involves
congestion resulting from repeated downloads of
intermediaries in the form of publishers etc. to
data.12 This storage of material is temporary in
provide an adequate platform for dissemination of the
nature though the time may vary from few minutes,
work, however, in digital media authors can directly
to hours to days. Caching poses potential threat to
make available their work to the targeted audiences
copyrighted material as the same is copied and
with intermediaries playing fewer role.
stored for future reference thereby negatively
Platform for Creation of New Kind of Works affecting the interests of copyright holders.
The advent of digital technologies has given rise to
Linking and Framing
completely new set of ‘works’ like multimedia works,
Linking and framing, generally speaking, is a
computer software, databases etc. adding stars to the
technique of connecting documents in online medium.
entertainment industry and revolutionizing the work
In linking, a link13 is used which has embedded
culture of almost all the fields using information and
electronic address of another website pointing
communication technologies.
towards the same. When a person clicks on that link it
Challenges Posed by Digital Technologies to Copyright takes the user to a destination site and enables him/her
Regime to view the contents which that site offers. Framing is
Ease of Replication and Dissemination of ‘Work’ to the a kind of linking, where the linked content is
Disadvantage of Copyright Holder displayed on the host site within “frames”. Both
The core notion of copyright is to prevent copying linking and framing pose challenges to copyright
of ‘work’ without permission of the copyright holder. holders of digital contents where the linked content is
As already discussed above, digital medium facilitates a copyrighted material and the permission of the right
easy dissemination of copyrighted work, however, for holder has not been obtained.
want of strict regulation its copies are created
Maintenance of Digital Library and Archiving
effortlessly and disseminated to millions of users
It is another area challenging the copyright regime
causing economic loss to the copyright holder. Digital
in digital age on the front of balancing the two
platform allows mass distribution of the copyrighted
conflicting interests of copyright holder on one side
work making it extremely difficult for the copyright
and right to access to information on the other.
owners to identify, and bring actions against the
Further, the various digital technologies employed by
number of individuals who are involved in the
the academic institutions maintaining the digital
infringement of their works.
libraries and the institutional repositories in acquiring,
Plasticity of Digital Media using and disseminating the copyrighted work raises
In digital medium, the users can easily alter, adapt, significant copyright issues like downloading, display,
modify, or manipulate works. This flexibility and multiple uses, storage, and access to contents coupled
plasticity offered by the digital media where altering with hefty fee charged from the users specially in
or modifying a digital content is painless task raises academic set-ups, etc.
concerns for the authors/owners as to how their
Peer-to-Peer Networks
original work shall be dealt with. Any unwanted and
Peer to peer networking14 involves computer
unauthorized addition or deletion in the original
systems connected to each other via special software
content has the potential to change the entire meaning
enabling a computer system to locate file/ data on
which may not be the intent or desire of the creator.
another networked computer system and transfer a
Caching and Mirroring copy of the same to its own directly without
Caching (sometimes known as “mirroring,” interference of any mediating server. This technology,
usually when it involves storage of an entire site or today, is often used to reproduce and disseminate
 J INTELLEC PROP RIGHTS, JANUARY-MARCH 2020 9

the copyrighted content without authorization of ‘tools’, simply carrying out the commands of
right holders. programmers. However, with the advent of AI,
ownership of such creations has become a debatable
Establishing Liability
issue where the result has been produced with very
Fixing liability for copyright infringement in
less or no human intervention.
traditional copyright set-up is relatively easy with
Naruto v Slater15 is the first famous case wherein
well settled laws than in digital medium which is
the judicial interpretation by the court was called
extremely dynamic in nature and having cross-border
upon as to non-human authorship of ‘work’ in
operations. Further, the digital copyright involves the
copyright regime. This case is famously known as the
key role played by “internet service provider” (ISP) or
‘monkey selfie case’ wherein a selfie was clicked by a
the operators/organizations providing digital forum
money using camera which was left unguarded. The
for transmission of copyrighted works. Owing to the
main issue before the court was whether copyright in
extensive operations and technical and financial
image so clicked belongs to the monkey (who clicked
constraints, the ISP is considered to be the best
it) or the photographer (owner of the camera so used).
possible choice to be utilized to check copyright
The court in its decision awarded authorship to a
infringement by disallowing unauthorized
human and not to “animal” as the animal failed to be
exploitation of copyrighted works on their platforms
“author” within the copyright regime. Though in this
and bear the liability of copyright infringement, if
case, the non-human entity was ‘animal’ this is
any, taking place on their network. However, in the
completely different from creation of work by
backdrop of no direct law in copyright regime on
artificial intelligence without human intervention.
the subject at hand, fixing the liability of ISP is no
However, the view has always been to recognize
easy task.
‘human’ authorship in copyright regime.
Jurisdiction Issues In the said context, it is important to discuss the
The cyberspace has no real location in actual sense. recent case wherein Shenzhen Nanshan District
It is everywhere yet nowhere. Though, the relevant People’s Court (China) has recognized authorship of
equipment like modem, PC (system), router etc. may AI in work created by artificial intelligence (AI)
be present in one jurisdiction however, the person software Dreamwriter. In this case, the Court found
using them may be sitting in another jurisdiction and the article in question, written by Tencent
the effect may be taking place in some third Dreamwriter AI, belonging to plaintiff-Shenzhen
jurisdiction. The cross-border operations of digital Tencent Computer System Co., Ltd. was original and
media, often comes in direct tussles with the strict worthy of copyright. As per facts, the article in
copyright regime which is territorial in nature. The question was first published by plaintiff wherein
jurisdictional issue often crops up before the court Tencent personnel used the Dreamwriter AI to draft
where the infringer is situated outside the territorial the said article. The defendant-Shanghai Yingmou
operations of a particular copyright statute. Technology Co. Ltd. disseminated the same article
Works Created by the Machines: Use of Artificial Intelligence
through its website without permission. The Court
Creation of ‘work’ which is subject-matter of ordered the defendant to compensate the plaintiff for
copyright by the machine using artificial intelligence economic losses by such dissemination.16
(AI) is at very nascent stage, the very idea of Protection of Authors’ Rights in Digital Medium
awarding authorship of such work to machines is
unconceivable to many nevertheless a potent one in Digital Rights Management
times to come. There are ongoing discussions and Digital Rights Management (DRM) refers to the
deliberations on the grant of ‘authorship’ in case of technological and management tools employed by the
copyrighted work created by AI with one side right holders to protect the copyrighted works in the
supporting the authorship to machines to another side digital medium. It is important to note that DRM
opposing the same and favoring the technology does not enforce copyright laws rather it is
programmer/organization to be the author. simply a tool of checking unauthorized access and use
Traditionally speaking, the ownership of ‘works’ of protected contents online. In terms that are more
created using computers were never debated as in formal DRM has been described as ‘a way of
such creations computer software were used as mere addressing the description, identification, trading,
10 MATHUR: A REFLECTION UPON THE DIGITAL COPYRIGHT LAWS IN INDIA

protection, monitoring and tracking of all forms of appropriate protection. Moral rights in the context at
rights usages over tangible and intangible assets, hand includes following:
including management of rights holders’ a) Paternity right (i.e, right of author to claim
relationships.’17 Owing to advancement in computer authorship to the work);
technologies, increase in storage capacity of devices b) Integrity of the ‘work’ against distortion,
used in digital medium and high speed internet, the mutilation and modification of the same;
online copyrighted contents have become highly c) Right to withdraw;
vulnerable to piracy which calls for the employment d) Right against imputations;
of measures allowing the copyright holder to prevent e) Right of publication;
users from using the online protected content beyond f) Right to reply to criticism; etc.
a desired limit. The DRM, in Copyright regime, has It is noteworthy that not all jurisdictions recognize
following two functional aspects: all kinds of authors’ moral rights.
a) The protection and maintenance of “Rights The plasticity of digital media, as discussed earlier
Management Information” (RMI); and in this section, permits modification, adaptation,
b) The management and protection of distortion and mutilation of copyrighted work once
“Technological Protection Measures” (TPM). exposed on digital platform. This facility for
RMI includes information as to identification of modification, distortion and manipulation coupled
‘work’, its owner, the rights possessed by him with easy replication, storage and dissemination
with respect to the ‘work’, terms and conditions of allows one to easily temper with the original work and
usage of such rights etc. To protect the ‘work’ share the tempered copy with millions of users,
from illegal copying, unauthorized access and infringing the author’s moral rights. Further, when the
usage, the online copyrighted contents are usually author does become aware of alterations to his work
coupled with TPM. These TPM could be in the and wishes to object to them by asserting his moral
following form: right of integrity, he confronts technological and
a) Digital Water marking and finger printing; regulatory obstacles.19
b) Enabling passwords;
Protection of Digital Copyright
c) Cryptography;
With the advent of digital technologies and the
d) Digital signature;
internet the very core of the copyright has been
e) Authentication;
challenged on legal front. The invention of printing
f) Private/public keys;
press i.e., with a change in technology a need was felt
g) Digital certificates; etc.
to accord adequate protection to the rights of the
Since DRM allows copyright holder to protect the
authors’ over their creations. Since then the copyright
copyrighted content on digital platform in strict sense,
laws have travelled a wonderful journey of systematic
it tends to result in denial of access to
protection to the rights of authors’ combating the
information/material to users. Copyright is now a tool
challenges posed by new technologies. This century
used against individual end-users, trying to prevent
has witnessed a tremendous growth in the digital
them from using copyrighted material beyond
technologies that it can safely be termed as ‘digital
boundaries set by right holders.18 Users who access
age’, easing out various tasks which were relatively
online material must click accept licensing terms in
strenuous in nature; improving lifestyles and at the
contracts of adhesion that often run 10, 20, 30 pages
same time posing various challenges. The invention
or more and often limit their right to use the material,
of printing press, television, broadcasting, computer
and may contain waivers of exceptions such as fair
programs, phonograms, radio and satellite
use, fair dealing or private copying.18
transmission and World Wide Web etc. all have re-
Moral Rights of Author in Digital Age structured copyright laws time and again.
The moral rights or the special rights of authors are
the non-economic and personal rights associated with International Scenario
the copyrighted work. The copyright regime The well-structured journey of copyright laws, at
recognizes these rights because it is believed that the international level, began with the Berne Convention
copyrighted work embodies the personality and for the Protection of Literary and Artistic Works,
character of its author which must be accorded 1886, where the foundations of existing copyright
 J INTELLEC PROP RIGHTS, JANUARY-MARCH 2020 11

regimes were laid down. Till date, Berne Convention right of communication to public etc. with respect to
has undergone various revisions20 to keep its their work. Article 11 and 12 provides for the
provisions in tune with the changing scenarios in the protection of TPM and RMI respectively. An
copyright field. After Berne Convention, the obligation is casted on contracting parties to provide
copyright regime has witnessed various instruments adequate legal protection against the circumvention of
harmonizing and governing multiple aspects of technological measures employed by the authors to
copyright laws at international level. In the context at protect their works at digital platform. It is also the
hand, two treaties WIPO Copyright Treaty (WCT) duty of the contracting parties to provide for adequate
and WIPO Performances and Phonogram Treaty legal remedies against persons tempering with the
(WPPT) are noteworthy. The two treaties together are RMI i.e., “rights management information”.
known as “Internet Treaties”, the objective of which According to this treaty, RMI means “information
are to lay down the international norms preventing which identifies the work, the author of the work, the
unauthorized access and use of copyrighted works on owner of any right in the work, or information about
the digital platform. the terms and conditions of use of the work, and any
numbers or codes that represent such information,
WIPO Copyright Treaty when any of these items of information is attached to
WIPO Copyright Treaty (WCT) was adopted on 20 a copy of a work or appears in connection with the
December 1996 in Geneva and came into force on 6 communication of a work to the public.”23
March 2002. The treaty recognizes the phenomenal
impact of digital technologies on copyright and aims to WIPO Performances and Phonogram Treaty
lay down new international rules and clarify already WIPO Performances and Phonograms Treaty
existing ones to combat the challenges posed by (WPPT) was adopted on 20 December 1996 in
modern developments. The relevant portion reads thus: Geneva and came into force on 20 May 2002. The
“Recognizing the need to introduce new primary focus of this treaty is upon the adequate,
international rules and clarify the interpretation of effective and uniform protection of the rights of
certain existing rules in order to provide adequate performers and producers of phonograms from the
solutions to the questions raised by new economic, threats posed by the developing information and
social, cultural and technological developments, communication technology. Article 2 of this treaty is
Recognizing the profound impact of the the definition clause defining various crucial terms
development and convergence of information and like performers, phonograms, fixation, producer of
communication technologies on the creation and use phonogram, etc. precisely. The moral rights of
of literary and artistic works” performers (i.e., the right to claim to be identified as
Computer programs21 and databases22 have been the performer of his performances and right to object
included in the realm of literary works under to any distortion, mutilation or other modification of
copyright. Via Article- 1(4) this treaty mandates his performances that would be prejudicial to his
contracting parties to comply with the Articles 1-21 of reputation) have been recognized under Article 5 of
Berne Convention. The agreed statement concerning this treaty.
the said Article of WCT clearly makes storage of Chapter 2 and 3 of this treaty provides for various
protected work in digital form in an electronic rights of performers and the producers of phonograms
medium a ‘reproduction’ according to Article 9 of respectively. The various rights such as right of
Berne Convention. The relevant text reads thus: reproduction, distribution, right of rental, etc. have
“The reproduction right, as set out in Article 9 of been provided for to do away the confusion as to the
the Berne Convention, and the exceptions permitted scope and limitation thereof. An agreed statement
thereunder, fully apply in the digital environment, in concerning Articles 7, 11 and 16 of this treaty is
particular to the use of works in digital form. It is worth referring to in the context of digital copyright
understood that the storage of a protected work in as it extends the application of aforementioned
digital form in an electronic medium constitutes a provisions to digital environment. The relevant text
reproduction within the meaning of Article 9 of the reads thus:
Berne Convention.” “The reproduction right, as set out in Articles 7
This treaty duly recognizes the authors’ various and 11, and the exceptions permitted thereunder
rights such as right of distribution, right of rental, and through Article 16, fully apply in the digital
12 MATHUR: A REFLECTION UPON THE DIGITAL COPYRIGHT LAWS IN INDIA

environment, in particular to the use of performances display. Though this definition can be extended to
and phonograms in digital form. It is understood that cover within its ambit the dissemination of work
the storage of a protected performance or phonogram in digital form yet a lucid definition dealing with
in digital form in an electronic medium constitutes a digital dissemination of work is need of the hour
reproduction within the meaning of these Articles.” considering the ease with which work can be
Article 18 provides for the protection against disseminated to millions of users online with a
circumvention of technological measures employed single click with attached perils.
by the performers and producers of phonograms to d) Copyright protection is accorded to the computer
prevent unauthorized use of their performances or programmes, and databases as literary work.
phonograms. Article 19 obligates contracting parties Sections 2 (ffb) and (ffc) define “computer” and
to provide effective legal remedies against “computer programme” respectively.
infringement of “rights management information”. e) The reproduction of literary, dramatic, musical or
artistic work otherwise than in the form of a
National Scenario cinematographic film is considered an “infringing
In India, it is the Copyright Act, 1957 which copy”. Reproduction in digital medium is
governs the copyright regime. It grants exclusive something though easy yet difficult to locate
rights,24 strictly statutory is nature and having owing to technical obstacles. Further, the
temporal limitations attached to it. The formally reproduction of copyrighted work in digital form,
structured copyright laws began its journey from the due to technicalities and functionalities of the
Copyright Act, 1914 which was based upon the U.K. concerned media sometimes is inadvertent, for
Copyright Act, 1911. To keep copyright laws in tune example storage of copy of work in temporary
with the technological developments taking place and memory of a system. The Copyright Act needs to
to fulfill international obligations, a need for a new address the issues where incidental storage owing
Act was felt and consequently the present Copyright to technological process is resulting into loss to
Act, 1957 was passed. Till date there have been 7 creator/author of the content.
amendments25 to this Act, amending the provisions f) The rights of the copyright holder with respect to
thereof to meet the modern day challenges. The 2012 computer programme have been specifically
amendment to Copyright Act, 1957 is a celebrated enumerated along with various other rights
move by the legislature so far the context at hand is relating to other kind of works. These various
concerned. Following are some of the points that other rights with respect to other subject matters
reflect upon the digital copyright protection under the (for e.g., right to distribution, performance in
Copyright Act, 1957: public, communication to public, etc.) are
a) The Act acknowledges the computer generated required to be well explained in the context of
work as it recognizes a person who causes such digital media.
work to be generated as the author of the said g) Chapter VIII of the Act deals with the rights of
work. However, it nowhere defines as such what broadcasting organizations and the performers.
“computer generated” work is. Further, with AI This chapter provides for various rights which the
gaining momentum, the ownership of AI- broadcasting organization and the performers
generated work has become a debatable issue have in respect of broadcast and performances
which needs effective settlement. respectively.
b) The definition clause defines “broadcast” h) The Copyright Act does not provide for ISP
meaning communication to the public by any liability directly. Though, Section 51 (a) (ii) may
means including a re-broadcast. Broadcast being a be extended to cover the same. The Delhi High
technological development assisting in Court, in case MySpace Inc. v Super Cassettes
communication of work to public using electronic Industries Ltd.26 has elaborated upon the fixation
medium. of ISP liability and website owners as:
c) Section 2(ff) defines “communication to the “Section 51(a)(ii), in its first part states that when
public” as making any work or performance anyone permits for profit any place for
available for being seen or heard or otherwise communication of copyrighted work to the public
enjoyed by the public directly or by any means of he/she is liable for infringement. MySpace owns a
 J INTELLEC PROP RIGHTS, JANUARY-MARCH 2020 13

website where third party users upload and view technology, today, poses myriad threats to
content. In a sense the appellant is provider of a copyrighted works that it has become imperative not
place, albeit virtual, to communicate various kinds of only to screen the copyright in digital forum but also
works. MySpace does enter into a contract with users, to sound the existing legal system to guard against
but for a limited purpose. The contract does not such ill-effects and fix the liabilities. The operation of
specify the kind of works users would upload. Users copyright in digital environment is completely
are free to upload whatever content they wish to, different from the operation in analogous copyright
without specifically informing MySpace about it. It set-up owing to the technicalities involved in various
provides the space freely, and users choose their activities like reproduction, dissemination, storage,
content for communicating it to the public. What etc. and the role played by the intermediaries in such
MySpace does is insertion of advertisements through activities.
automated processes without going through the In this digital age, where digital piracy is becoming
content itself. Thus, it cannot be doubted that a regular phenomenon, it has become absolutely
MySpace permits a place for profit as it definitely necessary to thoroughly revamp the legal system in
generates revenue” (emphasis supplied) India. The analysis of the concerned provisions
Though, Section 51 (a) (ii) may be used in fixation clearly shows the inadequacy to address the various
of ISP liability yet the infringement of copyright in issues raised by the modern day technological
digital forum needs specific and clear provision fixing developments. From elaboration on rights of
the liability of ISP as performance of rights in digital copyright holders in digital medium to ISP liability
media is different in operation as compared to and now with momentum in robotics, machine
performance of rights in analogous copyright system. learning processes and artificial intelligence issues
The “space” in the basic design of internet has pertaining to non-human author under copyright
different connotations and contours than “space” in regime need to be addressed appropriately. The
physical sense wherein control over ongoing activities current copyright structure in India, which has been
is much more and easier. Further, Section 52(1) (b) framed keeping in focus the analogous copyright,
of the Act grants immunity to the ISP as despite amendments to incorporate digital elements
intermediaries dealing with “transient or incidental by and large is still using the old regulatory set-up to
storage of a work or performance purely in the combat the new challenges posed by technology.
technical process of electronic transmission or Restructuring the copyright laws to keep it in tune
communication to the public”. Section 52(1) (c) with advancing digital technologies is need of the
grants similar immunity, however, with exception i.e., hour.
“the person responsible is aware or has reasonable
grounds for believing that such storage is of an References
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